Transparency 2.0

Digital Data and Privacy in a Wired World

by Charles N. Davis (Volume editor) David Cuillier (Volume editor)
©2014 Monographs XII, 177 Pages
Series: Communication Law, Volume 3


Transparency 2.0 investigates a host of emerging issues around the collision of information and personal privacy in a digital world. Delving into the key legal concepts of information access and privacy, such as practical obscurity, the U.S. Supreme Court’s central purpose test, and Europe’s
emerging concept of the «right to be forgotten», contributors examine issues regarding online access to court records, social media, access to email, and complications from massive government data dumps by Wikileaks, Edward Snowden, and others. They offer solutions to resolving conflict and look to the future as a new generation learns to live in an open digital world where the line between information and privacy blurs ever faster. This book is ideal for anyone interested in the legal battlefield over access and privacy, as well as for classes in the law of the media and First Amendment, privacy, journalism, and public affairs.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Introduction
  • Part One: Battlefield Court: Balancing Access and Privacy
  • Chapter One: The ‘Practical Obscurity’ Doctrine: When Is a Public Record Too Public?
  • Early Privacy Technology Cases
  • Paul v. Davis—No Informational Privacy
  • United States v. Miller—Beginnings of Discomfort
  • Whalen v. Roe—Trust in Government Computers
  • Stevens and Brennan: Words of Caution
  • Reporters Committee and Practical Obscurity
  • Threats from Compiled Data
  • Stevens: Right to Control Information About Oneself
  • New Definition of ‘Public Records’
  • Privacy for Those Identified in Records
  • Conclusion
  • Notes
  • Chapter Two: Tipping the Scales: How the U.S. Supreme Court Eviscerated Freedom of Information in Favor of Privacy
  • The Foia
  • Protections for Personal Privacy
  • Balancing Test
  • Establishing the Doctrine of Privacy Exceptionalism
  • The ‘Central Purpose’ Test
  • ‘Presumption of Legitimacy’ Rationale
  • Heavy Burden of Proof for Foia Users
  • Presidential Application of Foia
  • The Study
  • Supreme Court is King
  • Notes
  • Chapter Three: Public Access and Informational Privacy in Electronic Government Databases
  • The Privacy Interest at Stake
  • The Public Interests Served by Disclosure
  • The Private Interests Served by Disclosure
  • The Possibility of Redacting Personal Information
  • The Remaining Factors
  • Conclusion
  • Notes
  • Chapter Four: Conflict in a Digital World: The European Context
  • The European Conceptualization of Privacy
  • European Data Protection Directive and Proposed Regulation
  • Balancing Freedom of Expression and Information Privacy
  • Balancing Transparency and Data Privacy
  • The Right to be Forgotten
  • Conclusion
  • Notes
  • Part Two: Online Dilemmas: Email, Social Media, and Those Pesky Jammie Surfers
  • Chapter Five: Electronic Court Record Access: Present Landscape, Neutral Principles, and the Looming Interloper of Contextual Privacy
  • The Present Landscape of Electronic Court Record Access
  • Remote Online Access and Jammie Surfers
  • Bulk and Compiled Access
  • Categorical Exemptions
  • The Happy Marriage of Access and Neutrality
  • Looming Interloper of Contextual Privacy
  • Conclusion
  • Notes
  • Chapter Six: Social Media and Reporting on Judicial Proceedings: A Digital Era Conflict
  • Access to Courts
  • Using Twitter in Federal Courts
  • Using Twitter in State Courts
  • Conclusion
  • Notes
  • Chapter Seven: Access to Email and the Right of Privacy in the Workplace
  • Privacy as ‘The Right to be Let Alone’
  • The Fourth Amendment in the Digital Era
  • Privacy in Workplace Emails
  • Email and Freedom of Information
  • Email in FOI Statutes: Federal and State
  • Email in FOI Statutes: Judicial Interpretations
  • Summary and Conclusions
  • Notes
  • Part Three: Looking Ahead: Leaker Chaos, Resolution, and the Millennial Shift
  • Chapter Eight: All the News That’s Fit to Leak
  • ‘Worse than Nixon’
  • Individual Freedoms and the Spirit of Democracy
  • Legal Protections
  • Fourth Amendment
  • Stored Communications Act
  • Electronic Communications Privacy Act
  • Privacy Protection Act
  • Conclusion
  • Notes
  • Chapter Nine: Finding Resolution: Systems for Resolving Disputes and Reconciling Access with Privacy
  • Spectrum of Dispute Resolution Options
  • Negotiation
  • Mediation
  • Ombuds
  • Administrative Adjudication
  • Looking Forward
  • Negotiated Local Protocols
  • Web-Based Open Government Portals
  • Conclusion
  • Notes
  • Chapter Ten: Here’s Looking at Me: The Abandonment of Privacy and Solitude as Millennials Move to Life Online
  • Technology Meets Adolescence and Young Adulthood
  • Which Way Privacy?
  • It’s All Business
  • Conclusion
  • Notes
  • List of Editors and Contributors
  • Index

← vi | vii →


Few modern legal controversies engender as much passion, or as much confusion, as the unavoidable conflict between the protections for personal privacy and the right of access to information kept by government agencies about those very same people. Add technology and nearly unrestrained digital information flow to the mixture, and the world becomes a whirlpool of intrusion, empowerment, confusion, and fear. The headlines blare Wikileaks, Edward Snowden, National Security Administration wiretapping, big data, and identity theft, causing citizens to recoil, privacy defenders to mobilize, access advocates to fret, and judges to sort out an appropriate balance. The nexus of access and privacy remains largely unsettled, a paradoxical legal swamp devoid of concrete doctrine, relying instead upon a patchwork quilt of ad hoc judicial balancing, fitful attempts at rulemaking, and statutory pronouncements that all serve to create a dizzying array of unpredictable outcomes. Add the modern propensity for commentators to lump all privacy issues together, despite their very distinct legal genealogies, and the unsurprising result is a body of law shaped in large part by fact-bound judicial pronouncements that offer little in the way of guidance for policymakers and legislators seeking coherence with access principles.

Freedom of information law—the body of law emanating from right-to-know statutes in some regimes, and from constitutional rights of access in others—emanates from the democratic principles of self-governance and accountability. To allow the citizenry to monitor its government, it follows logically that a presumption of openness must undergird the records and proceedings of its agencies.

← vii | viii →In the everyday business of governing, agencies must as a matter of course collect a great deal of information about citizens. From the mundane licensure and registration of businesses, real estate transactions and the like to the much more sensitive collection of law enforcement information, health care data, and other highly intimate, personal information, millions upon millions of records fall within the ambit of government.

The emergence of digital record keeping introduced an entirely new range of issues to an already chaotic area of access law. Seemingly overnight, records once stored in relative obscurity in government file folders became available with the press of a few buttons. Laws created to provide access to paper records were ill equipped to negotiate the questions wrought by digital access. Records seen by few suddenly were available to everyone, in real time, raising new issues and generating conflicts that strike at the core of the presumption of openness.

The scope of government record keeping made possible by digital technologies, and the ease with which records can be produced, duplicated, and disseminated, offer both promise and peril. The potential for digital records to transform participatory self-governance knows no bounds, and allows the citizenry to organize and engage in ways unthinkable a generation ago. Instantaneous communication and web-based dissemination of government information provides tools that empower citizens and promises to level the playing field between the governed and their governors, ushering in a new era of government accountability.

That promise, unfortunately, carries with it the prospect of very real threats to personal privacy, as digital technologies concurrently make it easier than ever for prying eyes to misuse information even as a greater proportion of the information kept by the state on the lives of individual citizens finds its way online.

Reconciling that great legal conflict—the inevitable clash between openness and privacy—forms the basis of this book, which treats several of the most pressing issues of the day as a means for exploring the current state of informational privacy, and to where it might lead in the future.

The conflicts highlighted in this work represent but a few of the vexing issues arising from digital privacy. Indeed, discussions of informational privacy almost inevitably run aground as people tend to conflate one privacy arena from another. Our students constantly struggle with separating informational privacy from personal privacy from reproductive privacy, despite the fact that each brings with it an entirely different progeny of law, each with its own linchpins and definitional certainties.

It is deceptively easy to describe the ultimate conflict between privacy and access as a negotiation between the doctrinal principles of each body of law: the presumption of openness that forms the basis of access law versus the expectation of privacy giving rise to informational privacy. While such a formulation historically has served to inform the judicial balancing inherent in the case law, it ← viii | ix →provides little guidance for emerging conflicts like Wikileaks and the Snowden affair, which represent a new phenomenon in which technology gives rise to massive disclosures of government secrets. Informational privacy doctrine has little to offer in the way of reconciling these disclosures.

Little about either incident finds comfort in traditional privacy law. Snowden and Julian Assange each defended their disclosure in terms of defending privacy from unwarranted government intrusion. Each pits governmental assertions of the value of secrecy against broader societal interests in public knowledge of governmental actions, an age-old formulation of the benefits of access, yet neither considered the privacy rights of individuals harmed by the disclosures. In many ways, these timely examples amply demonstrate the shifting nature of the interests at stake in digital dissemination. As governments worldwide embrace decentralized records systems and classify more and more documents, the unsurprising result is the emergence of leakers acting in self-defined public interest terms. The future doubtless will produce new revelations, as system-wide classification regimes collapse of their own weight.

The legal protections for privacy emerged in response to specific phenomena; in the case of informational privacy, it could be argued that the rise of the surveillance state and its media counterparts drove the legal response as much as anything else. Privacy law has always been a response to emergent forms of surveillance and information gathering, and in that context, none of the controversies discussed in this book should surprise us.

The pace which new digital tools have appeared, with each new generation doubling and redoubling the speed and scope of communication, represents the greatest challenge for the law. At the dawn of the twentieth century, the camera represented the state of intrusive technology, giving rise to the first scholarly discussion of legal privacy rights. How quaint!

The seminal work of Samuel Warren and Louis Brandeis, “The Right to Privacy,” in an 1890 Harvard Law Review article, decried the use of the newfangled camera and other intrusions into what today would appear to be wholly public places as the foundation of individual freedom in the modern age. Given the increasing capacity of government, the press, and other agencies and institutions to invade previously inaccessible aspects of personal activity, they argued that the law must evolve in response to technological change.

In fact, the central thrust of Warren and Brandeis’ article was an attempt to distinguish privacy from property rights, and to delineate some legally prohibitive harm in the act of intruding upon that elusive right. As one court remarked, after noting the work of Warren and Brandeis: “Basically, recognition of the right to privacy means that the law will take cognizance of an injury, even though no right of property or contract may be involved and even though the damages resulting are exclusively those of mental anguish.”

← ix | x →Therein lies the great paradox of privacy law. It sets forth a right to be protected yet the right is ill defined, and its legal parameters evade firm definition. Privacy law’s grounding in the amorphous “penumbras” of constitutional protection championed by Justice Brennan in Roe v. Wade perfectly illustrate why this area of the law can prove elusive for legal students grounded in statutory precision and three-part tests.

If we can presume that government transparency is a legal right of equal worth to privacy, or at the least is an important component of democratic self-governance that cannot simply be swept aside in the service of privacy interests, the complexity of the task before us is made clear.

As the following chapters demonstrate, digital technology has again and again altered the privacy landscape by raising novel questions that render the traditional judicial and legislative balancing of interests unable to adequately serve the interests at stake in these disputes. Several structural weaknesses exist in each of these conflicts.

First, it can be argued that digital technologies and the changes wrought by them work to elevate privacy interests above the values of transparency. This is examined throughout the book, starting in Chapter One by Sigman L. Splichal, and in Chapter Two by Martin E. Halstuk, Benjamin W. Cramer, and Michael D. Todd. The chapters explore “practical obscurity” and how, the authors argue, U.S. Supreme Court rulings have eviscerated access statutes in large part because of concerns over privacy and digital information proliferation. Joey Senat in Chapter Three and Richard J. Peltz-Steele in Chapter Five build on the argument by looking at how the courts have approached government data cautiously, nervous of the ease with which anyone can peruse court records in databases or online, easily snooping on neighbors, co-workers, and family members. Even covering public proceedings, such as trials, through social media, can cause consternation and conflicting rules when balancing privacy with access, as Derigan Silver explains in Chapter Six, not to mention how to traverse email and other online communications, as Kyu Ho Youm explores in Chapter Seven. Whether the issue is access to the emails of government officials, access to government databases, instant messaging, or other emerging forms of digital collection or dissemination of information, privacy interests enjoy an exalted status. This is not to suggest any sinister craving for secrecy. Rather, it is a natural reaction to the digital unknown, a predictable and oft-repeated response fueled by political realities. Simply put, “protecting” privacy by restricting new digital avenues of access to governmental information offers little political risk. Asked whether they desire greater privacy, few citizens respond by questioning the need for it, and fewer still demand that arguments in favor of access receive an equal place at the policy table.

Second, arguments for digital transparency often are grounded in abstract notions of “the right to know,” self-governance, and accountability. All are important ← x | xi →values, but not one is sufficiently evocative to compete with privacy narratives, which often are based on worst-case scenarios and heuristic shortcuts designed to overcome those arguments. Good government, it seems, is a tough sell in the face of powerful, if specious, privacy arguments. This is not to say that powerful and real privacy arguments do not exist; quite the contrary. In some cases even the most powerful arguments for access must yield to stronger privacy interests. This book demonstrates, however, that in many digital transparency disputes, the disciplined analysis of competing interests required to better reconcile these conflicts falls victim to political calculus designed to cater to temporal responses to new technologies. This makes resolution more difficult, as Daxton “Chip” Stewart describes in Chapter Nine regarding processes used to reach agreement and find common ground.


XII, 177
ISBN (Hardcover)
ISBN (Softcover)
Publication date
2012 (June)
information practical obscurity conflict information access digital access legal privacy
New York, Bern, Berlin, Bruxelles, Frankfurt am Main, Oxford, Wien, 2014. 177 pp., num. fig.

Biographical notes

Charles N. Davis (Volume editor) David Cuillier (Volume editor)

Charles N. Davis (PhD, University of Florida) is Dean of the University of Georgia Henry W. Grady College of Journalism and Mass Communication. David Cuillier (PhD, Washington State University) is Director of the University of Arizona School of Journalism. Both have served as freedom of information chairs for the Society of Professional Journalists.


Title: Transparency 2.0
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