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Oregon Humanities is a journal of ideas and perspectives published twice a year by the Oregon Council for the Humanities. Each issue includes essays and articles that explore a particular theme from a variety of perspectives, broadening the ways in which readers think about a subject and providing a basis for further thoughtful discussion.

Oregon Humanities Spring/Summer 2007

In the Dark

More secrecy and less privacy in the Information Age

by Brett Campbell

The scary thing about government secrecy is that we don't know what we don't know. But we do know that we know less about our government than we used to. Early in the Bush Administration, Attorney General John Ashcroft changed the presumption regarding release of government information from presumed open to presumed secret--one of many administration policies restricting the public's right to know about its government. Since September 2001, the U.S. government has removed from public scrutiny more than a million pages of historical government documents. And even though the number of freedom of information requests is down, citizens seeking government information face record wait times, and requests "remain heavily backlogged," says the Coalition of Journalists for Open Government.

The picture at the state and local levels is equally dark. An Associated Press survey of all fifty states released in March reveals that open records laws are sporadically enforced and violations seldom penalized.

So great has been the concern over mounting secrecy that one of the first legislative initiatives to pass the new Democratic-controlled U.S. House of Representatives was a package of Freedom of Information Act (FOIA) reforms designed to speed response to open records requests and otherwise increase public access to government information.

Yet while we know less about the government, the government knows more about us than ever--and so do numerous private entities. The recent disclosure of illegal FBI surveillance is only the latest example of the erosion of privacy that's abetted by new information technologies.

Alasdair Roberts, a professor of public administration at Syracuse University, has been studying government transparency and accountability for years, and his award-winning 2006 book, Blacked Out: Government Secrecy in the Information Age (Cambridge University Press) draws some surprising conclusions about privacy and government secrecy today. For more information, see www.aroberts.us.

BC: The mantra of the digital culture is that "information wants to be free." New technologies are making everyone a reporter and opening up previously hidden information sources. In light of all this decentralizing and democratizing, why now, of all times, should we be worrying about government secrecy?

AR: I don't buy the proposition that information wants to be free. Information is an object of political struggle. There's no reason why that struggle would change, but not stop, because of technological advances. But you're right that this is a moment of paradox and contradiction, because technology and law are changing so rapidly that sometimes it's not clear whether they're enhancing transparency or eroding it. To some degree they're doing both.

On one hand, it's radically easier for me to sit at my desk and retrieve information on what the government or civil society is doing in all parts of the world--so in that sense there's now a level of access to information that's extraordinary. Technology has enabled the emergence of an extraordinary global movement that's interested in transparency. You've got nongovernmental actors in dozens of countries around the world who are regularly communicating with one another and sorting out how to push the battle for transparency in their home countries. And that's unprecedented--that wasn't there even five or six years ago.

We've had a lot of stories about the Bush administration and its obsession with secrecy, but ... we also see other pressures operating. It's easier to leak information now than ever before because of technology, and leaked information gets around a lot faster. Technology is part of the story of the Abu Ghraib controversy--all the digital photos and files that got around the Internet so quickly. You can even make the argument that one of the things that drives the Bush administration's obsession with secrecy is that they're trying to counteract this--to regain control in a world where technology makes it tough to control the flow of information. It's a kind of pathological response to the new reality.

BC: But, as you point out in the book, the Abu Ghraib disclosures didn't play a role in the following election, so there was no accountability after those secrets were disclosed.

AR: Abu Ghraib shows that transparency isn't the whole story. The capital-P Progressive story is that if the truth gets out, policy will change and justice will be done. Abu Ghraib is one case where that line hasn't worked. All of these stories about CIA secret prisons and ghost planes and treatment of prisoners held by the CIA are often pitched as evidence of government secrecy. But in fact, if you looked at the mainstream media, you could have figured out pretty quickly after 9/11 what the government was doing. It's not just about secrecy: it's about how to arouse the public once the story has come out. You can't just accept this basic Progressive narrative that it's only about getting information out into the public domain. It's more complicated than that. The important facts are widely known. It's also a question about what we as citizens care about and are prepared to be aggravated about.

BC: In the 1960s and '70s, we had the Pentagon Papers, revelations of CIA and FBI misdeeds by the Church Committee, and so on. Now we have Attorney General Ashcroft issuing a new presumption of secrecy on government information. You say that the administration and its critics tried to turn back the clock, but that now it's not "worse than Watergate." Why not? Does that mean things have changed so much that we have nothing to fear? Are things any better now?

AR: I walk a fine line here. The rhetoric has often [created] a strict division between civil liberties issues for citizens and rights violations of earlier crises. So people say it's like the 1970s or the '50s or the '20s or the Red Scare all over again. It's not the same; we're in a qualitatively different crisis. The rights infringements aren't as grievous, and actually, in this crisis, the real questions have to do with what the government is to do in terms of the mining and manipulation of mass databases. That's a new phenomenon driven by technological change--these big databases that weren't there in the '60s and '70s.

BC: As your book notes, after the U.S. enacted FOIA in 1966, few other nations followed our lead. Then, in the 1990s, a number of other countries started adopting these disclosure laws. What happened?

AR: Simultaneously you had countries, for example, in Eastern Europe and Latin America, that were transitioning to democracy, and because they were coming out of authoritarian regimes, they put great emphasis on the importance of transparency. Right to information [RTI] laws demonstrated that commitment to openness. That was particularly true in the 1990s. Toward the latter part of the 1990s, a lot of countries were told that having an RTI law was an effective way to fight corruption. Some countries made the calculation that a right to information law was an effective way of making it look like they were fighting corruption. There was civil society pressure, but also pressure from Transparency International and international organizations like the International Monetary Fund and World Bank that put a premium on transparency--and RTI laws are seen as one way of achieving that.

Also, trade agreements [and institutions] like the World Trade Organization often contain access to an information regime that says that businesses or investors are allowed to get certain information from the government, information that they need to make investments in the country.

The predicament is that many of these private actors are not subject to transparency rules--the rules are aimed primarily at government agencies.

BC: There's a tension between transparency and privacy issues like identity theft or corporations getting too much information about individuals. So what are the limits of disclosure? What information should remain secret? How do you find a balance between privacy and transparency?

AR: There's a big discussion we need to have in this country about the collection and use of personal information by the private sector. Forget about government for a moment--we need to look at how the private sector is collecting and aggregating personal information on a massive scale. The U.S. has the weakest personal privacy laws--what the Europeans call data protection laws--of any developed country. And that's a big issue. One of the questions is, how much do we really care about that? On the one hand, we espouse a commitment to privacy, but on the other hand, we haven't seen mass pressure on government to restrict these intrusions by the private sector. And actually, you watch enough of these reality shows on TV and you wonder about how strong the commitment to personal privacy really is.

But then the irony is that government essentially begins to turn around and tap these vast private aggregations of data. So to some degree the story isn't just about the government using government databases, but also the government exploiting private-sector databases. That's an issue we haven't tackled very well.

How much privacy we had historically is an interesting question. Mass urbanization is a relatively recent phenomenon. Until the 1930s, most of us lived in small rural towns or farms. One can question how much privacy we really had in that time as well.

BC: Your book also notes the problem that technology has given us too much information to make sense of it--obscuring by flooding?

AR: It's not just a question of getting access to raw data. To some degree it's a question of whether we can make sense of the data that we have access to. Whether we've got a trusted intermediary--whether journalists or nongovernmental organizations (NGO)--with the skills to make sense of it for us. And then whether we have the interest and commitment to act on the information we get. The transparency story isn't just the basic level of access to data--it's what we're able to do with the data we get.

To some degree the problem has always been there. The jurisdictions where RTI laws work well are where stakeholders have the expertise and commitment to use them, whether it's journalists or NGOs, and where there's a community of citizens prepared to act on the information. And now, better technology is just upping the stakes, because the task of sorting out what it all means becomes more complicated.

The irony is that I sit at my desk with a high-speed Internet connection and I access the LexisNexis database, and the principal thing I do with all these tools is complain about government secrecy. You really do have to be careful about falling into this ritualized discourse about government secrecy. Particularly in the U.S., we have this healthy anti-statist tradition, which assumes that the executive is always gaining power and trying to restrict access to information. We have to take that with a grain of salt and look at the underlying technological and sociological forces that might be changing the rules of the game even for them.

BC: What can states and the national government do to improve transparency and privacy? Is there any good model legislation?

AR: Privacy protection is an area that many countries have been working on for a long time. There are well-established standards adopted in other countries on the handling of personal information by the private sector. So if states and the federal government are looking for models, there are a lot of models out there. The question is how you build a political coalition to get tougher laws.

Canada adopted a federal law about five years ago that regulates the use of personal information by the public sector. And the Europeans have such laws. This is why Europeans have such a tough time when the U.S. says, "We want you to share airline passenger information." They're trying to reconcile relatively loose American laws on the handling of personal information with relatively strict European laws on the handling of personal information.

The issue of transparency in the private sector and the right to information generally is a tougher nut to crack. It's not clear that it's going to be politically feasible to adopt a freedom of information law for the private sector--it's much tougher to figure out a policy.

BC: Your book documents the recent rapid privatizing of government functions. What are the implications for secrecy and disclosure?

AR: On one hand, you have the question of the right to information held by private actors--in particular when they get into the business of delivering what used to be public services. On the other, you have the question of the rules that ought to govern the right to information held by private actors. In both stories, the underlying questions are, "What are the rules of the game governing information acquisition by private actors? How are we going to sort out the rules of the game properly?"

One predicament is that in a growing market economy, industry has a great deal of political power--so how do you manage that kind of power politically? How do you mobilize people to establish the rules that have to be enforced? It's easier to build a constituency interested in proposing restrictions on government, because both businesses and citizens have a joint interest in regulating government. But when it comes to regulating the private sector, industry and citizens don't have a joint interest--they have opposing interests.

BC: What are the limits to the right to information? Since the 9/11 attacks, some have justified greater government secrecy with the supposed need to protect secrets and potential targets from terrorists. Is there evidence that such laws really are needed? Is there information that should remain secret?

AR: There's an argument to be made for restricting access to certain information, such as details about vulnerability; obviously a lot of information about critical infrastructure is already in the public domain.

In some of these cases there is a middle ground between making information completely available and completely secret. In some instances, what agencies have essentially done is require individuals to come to an office to look at records so the agency can inspect IDs and establish credentials for their interest in the materials.

BC: There are also instances--some documented in your book--in which corporations have tried to use secrecy laws to prevent disclosure of, for example, environmental risks to surrounding communities.

AR: There is a problem with companies trying to abuse provisions set up to protect potentially sensitive information. Part of the difficulty is the way in which these arrangements are made--for example--with regard to so-called critical infrastructure information--saying that companies are completely exempt from the FOIA regime. The nice thing about FOIA is not that it guarantees that a piece of information will be available. It means that we've got a process by which people can make independent judgments, and it sets up a process in which those decisions can be appealed. There's an independent third party looking at a case to see if claims of secrecy are reasonable or not. The difficulty with these blanket exemptions is you're opting out of the regime. It's also a problem that you no longer have an independent third party to look at the case and make a judgment call about whether it's reasonable to restrict the information.

BC: Very recently, the journalism advocacy group FAIR (Fairness and Accuracy in Reporting) issued a report decrying the administration's noncompliance with FOIA requests. And for years, journalists have complained of long delays, blacked-out passages, high fees charged for copying or access to public records, etc.

AR: The common problem with all these regimes is bureaucratic resistance to disclosure, which shows up in a bundle of ways--delays, excessive fee charges, withholding of documents, and so on. The bottom line is there's no law on earth that's going to bring you a world of transparency by itself. It's always going to be a battle for information. The question is whether the battle lines are fairly drawn. One thing you need is an effective enforcement mechanism. Another is interest groups or journalists who have the time and resources to pursue a case. You also need to make sure they have a referee to call in to evaluate the necessity for delays or redactions.

There's been some discussion about the need for a citizens' ombudsman in federal law. There's a group called the Sunshine Coalition arguing for an independent officer. I'm not sure whether they're going for the full ombudsman model where the official would have the power to adjudicate cases, or if it's more along the lines of bringing in more reinforcements to enforce the law.

BC: How effective is FOIA and how does it need to be changed to make it more effective?

AR: At the federal level, one big issue is the inadequacy of the enforcement mechanisms. This doesn't have much to do with the Bush administration; the law has always been this way. The law works best for individuals who have money and a lawyer. It doesn't work well for people who aren't advantaged in that way.

I've got requests at the federal level that have been hanging out there for years and continue hanging because I don't have the legal expertise or money to hire a lawyer.

Other countries have set up independent ombudsmen who can adjudicate cases at lower cost without lawyers getting involved. And multinationals or a reasonably financed NGO can get reasonably good access to information.

BC: Can you list some of FOIA's greatest hits--big stories we wouldn't have learned about if the law hadn't existed?

AR: I'd say the greatest hit is a series of repeated small hits. Under federal law, for example, there are several million requests filed every year, and the overwhelming number are not requests from journalists or NGOs. They're not requests that are trying to make life miserable for Dick Cheney or George Bush. They're requests filed by individuals looking for information on decisions that affected them directly, whether it's denial of a benefit or unfair treatment. One of the important benefits of this law, which we sometimes take for granted, is that it gives individuals or businesses the right to get the files relating to government decisions that affect them directly. In a lot of jurisdictions, in terms of sheer numbers, that's the predominant use of the law. So that's improving the performance of the economy. And then you've got NGOs and journalists trying to figure out why government decisions were made a certain way or why programs are spending money in a certain way.

BC: What about the greatest failures of disclosure, where government secrecy prevented us from finding out vital information until too late?

AR: It is true that FOIA requests about Guantanamo, or the handling of detainees after 9/11, or about the war with Iraq, or postwar planning in Iraq--those requests were processed very slowly and information came out very slowly. That's the difficulty with freedom of information--by the time you get these documents, very often it's history. I don't think failure to disclose information is the big story, because very often we know the basic facts--the question is whether we're prepared to act on them.

BC: What worries you the most now about government secrecy?

AR: What gets a lot of attention is the problem of what I call "executive resistance" or "executive pushback": presidents or prime ministers or department heads resisting their obligations under the law. What doesn't get a lot of media play is how we adjust transparency in a world where the very structure of government is changing. How do we think about transparency with private actors, not public actors, doing a government function? Or when intelligence and security agencies are making confidentiality agreements sharing sensitive information? Or in some countries where it's the World Bank or IMF or WTO that is making decisions that are affecting the nation's policy? Part of the difficulty here is that there are underlying structural changes and we haven't figured out how to fit transparency into that new world.

BC: What gives you the most hope?

AR: Rising consciousness about the importance of transparency and the fact that there's a growing and vibrant international movement of activists. That there's this important resource that wasn't here just ten years ago--an international community of people who swap information and advice on how to advance transparency.

Published in the Spring/Summer 2007 issue of Oregon Humanities.

© 2007 Oregon Council for the Humanities

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