Transparency 2.0

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.

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.”

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.