Tag Archives: privacy

Librarians Face Digital Dilemmas with Principles, Experience & Concern for Patrons’ Rights

As the nation grapples with the Faustian choice between the right to know and the right to privacy, librarians should have a place at the table.  From time immemorial they have struggled to balance the rights.  Librarians have staunchly fought for open government and gone to jail to protect their patrons’ privacy against over-zealous government snooping.  The fact is that librarians think a lot about information; as one observer writes, they are “information connoisseurs.”

Thousands of librarians are gathered this week in Chicago where they will find grounding in traditional principles honed in a print environment to face the challenges of a digital world.   Though the ramifications are incalculable, none is more center stage than those that juxtapose the dilemma between access and privacy now challenging the nation.

Unreconstructed advocate for open government that I am, I am proud of the library profession for its staunch commitment to privacy.  Wise professionals have anticipated the threats to patrons’ privacy.  Towards this end the American Library Association’s Office of Intellectual Freedom maintains a robust library of digital resources devoted to the principle that the preserving “the freedom to read and receive ideas anonymously is at the heart of individual liberty in a democracy.”

In a recent position paper the Office of Intellectual Freedom directly faces the tension between the right to access and the right to privacy.  The report makes the clear distinction between personal and public information.  At the same time OIF anticipates the confusion facing Americans in the wake of leaks of government and attendant charges and challenges:

When the right to privacy is eroded or stripped away, people are more likely to abandon or curtail their exploration of unpopular and unorthodox points of view.  This chilling effect puts the intellectual development of our citizenry at risk.  The very character of the American mind, which is premised on open inquiry, is thereby robbed of the free flow of ideas that makes innovation possible.

In the past, closing a curtain, sealing a record, or simply choosing not to share one’s information could protect privacy.   But emerging technologies are compromising privacy rights and changing social norms.  Computers, online networks and databases collect and store personal information, which may then be freely traded among government offices, corporations, and law enforcement agencies without an individual’s knowledge or consent.  Few people protest when they are required to give away their personal information Identity theft and data breaches are occurring more frequently – confirmation that individuals can no longer feel confident that the institutions holding their information are treating it with due care and consideration.

Other privacy rights are equally at risk.  Concerns about national security and crime have spurred political interest groups and law enforcements agencies to question traditional expectations of privacy.  These groups are now advocating changes in the law that diminish stator privacy protections and permit the government to peer into personal lives.

 Librarians who have their professional fingers on the pulse of the public and of the technology know that in a digital age Americans must be responsible for their own information privacy.   As usual, they know that ultimate responsibility for protection of individual rights an informed public.  The concern is that many people who routinely use public access facilities are unaware of the potential intrusion on their right to privacy. As part of Choose Privacy Week 2013 the ALA posted a useful tip sheet for patrons entitled Protect Your Privacy While Using Public Computers & Wi-Fi appropriate for libraries or any other public setting.

The usual suspects – politicians, propagandists and pundits – would do well to update their stereotypes and pull up some chairs for the librarians who have spent their professional lives cogitating digital age dichotomies long before they went viral.

 

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Government information – leaks, privacy, more questions than answers

Like most Americans I’m totally befuddled by the Snowden affair.  A confirmed supporter of open government my allegiance to the people’s right to know is in the DNA.  At the same time, I hear the concerns of data privacy advocates.  And in the end, it seems to me that this bifurcation of the issue is a false premise at its core.

The best I can do is to identify, ponder and focus on some basic questions.

  •  Why did Booz-Allen have access to sensitive records of the NSA in the first place?  In our enthusiasm for limited government are we abdicating government authority and responsibility in favor of the lowest bidder or, more likely, the favored consultant agency.
  • What trusted government process allowed for Booz-Allen to place a callow youth with no relevant experience to guard the data hen house?
  • What other clearance do contracted lackeys enjoy?
  • What has been the role of the journalists ostensibly selected by Snowden – Glenn  Greenwald of the Manchester Guardian and Washington Post journalist Barton Gellman.
  • Who/what is the FISA court?  How are members chosen? What exactly is the role of the court?  To whom is FISA accountable?
  • Just how much infringement by the government on individuals is acceptable?
  • Whose responsibility is it to assure that government policies and practices stay ahead of the technology?
  • Is responsibility for policy being relinquished to geeks?
  • How do average Americans know the rules under which our government is operating – intentionally or inadvertently?
  • Is anyone outside the Beltway really informed, engaged, responsible?
  • How can citizens know the scope of this incident? Or, for that matter, how many citizens know the basics of government intelligence – the players, the policies, the decision-making process, the protections?
  • Where is the Fourth Estate in all this?

I’m not as interested in the details of where Snowden’s plane landed or the role of Assange as I am in the Big Picture.  I want to know the Deciders, the game, the players, the rules, the oversight, the accountability of the actors to the American people who not only deserve  the truth but who also pay the generous salaries of these high-placed Insiders.

For all of the inflated language, posturing and finger-pointing, this incident reveals that the business of governing this nation is a human enterprise.  So is the business of investigating, interpreting and informing the public.   Given access to information by and about our government we citizens are capable of understanding and acting responsibly.  We can and will be responsible for the oversight so obviously lacking in the intelligence community and the free press.

Others will and must have other questions – the urgency is to keep on asking till we get some answers.

Re-thinking the public’s right to know vs. the public’s right to privacy

American democracy is a conspiracy of special interests against the general interest, but every special interest thinks that it is the general interest.  Michael Kinsley, Washington Post, February 20, 2005.

Media attention to open government issues has always tended to veer toward getting the interviews and opening the books when the spotlight is on an individual by whom or about whom information is either disclosed  or withheld.  We love to hear and talk about people more than issues or cold, inert information.  Just as important,  the tension between proponents or privacy and supporters of transparency makes good copy.

Clashes between privacy and open government are everywhere in the media these days, leaving confusion and concern on the minds of many Minnesotans.  As one of those trying to unravel the issues I recently revisited a  paper  I had filed years ago.  Entitled “Caught in the Middle: Access to State Government Records in the United Statesthe paper was presented by Richard Pearce-Moses at the Japan-U.S. Archives Seminar in May 2007.  At the time Pearce-Moses was Director of Digital Government Information at the Arizona State Library, Archives and Public Records.  In this highly charged privacy/transparency environment, it’s worth a re-read. 

Pearce-Moses defines his basic argument at the outset: 

What is the value of archives if not to provide access to information? Why spend time and effort collecting and organizing records if no one will ever use them?  Access to information is a cornerstone of the archival profession.  At the same time, archivists recognize and respect individuals’ and corporations’ rights to privacy, as well as legal restrictions on access to records in their custody.  The irony for public archives is that, at least in English, the word public embraces two contradictory senses: the records are public, in the sense they are of the people, but they are necessarily public, as some are confidential.

He is quick to remind the reader of the clear distinction between the requirement of government to preserve the record and the lack of parallel responsibility on the part of corporations and private individuals.

The legal aspect of access Pearce-Moses defines as Protecting the Government’s Interests vs Privacy.  The practical application of the law, he notes, usually focuses on “records”, including all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics.”  The word “all”, he says, “incompasses a lot of material.”  The question itself has significant implications when it relates to states’ providing for inspection of public records.

Courts, he writes, have routinely held that access to records is subject to reasonable rules and regulations to avoid disruption of regular business.  However, the agency and the individual or organization making the request may have different ideas as to what they consider to be unreasonable disruption.

The thorny issue often lies in the area of definitions of information, records, and public records – an increasingly cloudy area that has loomed for a couple of decades. Exploding technology has become a staggering challenge to Deciders in today’s tsunami of tools that few have or take the time to consider in the longer term.

Neither bilateral nor ad hoc thinking is sufficient.  It will not suffice to tweak old models. This paper reminds me of just how essential it is for the concerned parties, including the public,  to drop the cudgels and come to grips with the fact that we must reframe the very issues of the public right to privacy and the public right to know.  The processes that protect those rights must flow from not dictate policy.

 

 

Wikileaks FAQs

Open the Government plays David in the federal David vs Goliath world of information access.  Once again the dynamo organization has risen to meet head on the digital dilemma de jour.  This time it’s Wikileaks and the flood those leaks unleash.  The FAQs about the Wikileaks controversy are totally on target.  With thanks we share the gift of information from Open the Government. Following is a memo received today:

OpenTheGovernment.org has worked with our partners to answer some of the questions transparency advocates are frequently asked about the WikiLeaks controversy, and have set up a site (https://sites.google.com/site/wikileaksandtransparency/ ) with some useful resources on the issue. While the answers below were developed with input and advice from a broad range of our partners, they do not represent and are not intended to be representative of a consensus view among our coalition partners, or the wider openness community. (View the FAQ’s online here: http://www.openthegovernment.org/article/articleview/458/)

WikiLeaks Frequently Asked Questions

Are the people working for WikiLeaks journalists?
As neither the Espionage Act, nor the First Amendment to the U.S. Constitution differentiates between journalists and any other person, the question of who does and does not qualify as a journalist is irrelevant to issues at the heart of the WikiLeaks controversy.

Could Bradley Manning, or other accused leakers, and WikiLeaks be prosecuted?
There is a clear distinction between Bradley Manning and WikiLeaks under the law. If the governments allegations are true, Spc. Bradley Manning and/or other government employees disclosed classified information to unauthorized persons. As a government official Spc. Manning had an obligation to protect both the classified information and sensitive intelligence sources, and the personal privacy of other third parties mentioned in government documents.

The government interprets the Espionage Act to grant wide discretion in prosecuting leaks of classified information. Whether or not it is fair and appropriate to prosecute Pfc. Manning for choosing to violate his duty as a government employee to protect properly classified information is an open question that ultimately rests on whether one thinks the public good in exposing the information outweighs the potential harm to national security and the violation of the rights of innocent third parties. As more facts regarding the matter are made public as the prosecution proceeds, this debate will continue.

The case against WikiLeaks for violation of the Espionage Act is a much tougher sale for the government to make. As noted in a report by the Congressional Research Service (CRS), Criminal Prohibitions on the Publication of Classified Defense Information, Congress’ research arm is “aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.” The Department of Justice would be wading into untested waters to bring a case which could have disastrous ramifications. Prosecuting WikiLeaks would undoubtedly harm on our first amendment protections and have a chilling effect on the press. Further, were the prosecution to fail, we could expect Congress to revive old proposed amendments to the law that would likewise curb free speech and press rights, hurt information sharing and disclosure, and encourage more classification of information.

We hope that Congress will resist the impulse to move quickly and speak loudly in favor of a cautious, measured approach. On December 16, 2010, the House Judiciary Committee held a hearing on “The Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.” The overwhelming sentiment of the seven witnesses testifying at that hearing was that Congress should focus its efforts on preventing leaks from within, not punishing those who receive or even publish such information. The Committee, and others with jurisdiction, should heed that advice and, in fact, collect more information before proceeding. The initial attempt to address the Wikileaks, the SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act introduced on December 2, 2010, in the Senate as S 4004, contains several clearly unconstitutional provisions.

What should be done to better protect our national security?
The best way to protect against disclosure of our national security secrets is to deal with the supply side of the equation: improving security on our information systems and reducing over-classification. The government has an obligation to protect classified information, and the fact Pfc. Manning or someone else was supposedly able to walk out of a secure area with a trove of classified national security information on a CD is unconscionable. The Administration should endeavor to ensure that any security measures implemented are platform, issue and personnel neutral to the greatest extent possible. In other words, there should be no possibility for selective application for political purposes. If information or materials require the highest security, that security must apply in all situations.

The Administration should also push agencies to complete the Fundamental Classification Guidance Review, a procedure required by President Obama’s Executive Order on Classified National Security Information (EO 13526). Every agency that classifies information is supposed to seek out, identify and remove classification requirements that are no longer valid. The disclosures on WikiLeaks prove that much of what the government says is classified is not much of a secret at all. This overclassified information clogs our systems and prevents us from protecting the real secrets nearly as well as we should.

What is the relationship between the WikiLeaks case and the pending Whistleblower Protection Act, S. 372?
S. 372 does not under any circumstances authorize public disclosures of classified information, or disclosures of sensitive sources and methods information to any unauthorized persons or entities. Indeed, S. 372 is an anti-leaks measure; absent it, media outlets and WikiLeaks will be the safest alternative for those who want to challenge fraud, waste and abuse without engaging in professional suicide. Congress should pass the Whistleblower Protection Enhancement Act to provide safe and credible channels for disclosing classified information, when none currently exists.

For more information on S. 372, see POGO’s fact sheet.

There is wide disagreement in the openness community as to whether or not Spc. Manning is a whistleblower: while much of the information he allegedly disclosed clearly benefits the public interest by exposing unnecessary official secrecy and potentially informing public debate about our government’s policies and actions, it is also argued that the sheer volume of the materials recklessly puts innocent parties at risk.

 

 

 

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