Tag Archives: right to privacy

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.