Lawrence Lessig argues convincingly that there are dangers in systematically favoring transparency over privacy: A thoughtful democracy should strike a balance between both values, which sometimes compete and sometimes reinforce each other. I found less cause for optimism, however, in Lessig’s proposals for combating the dangers he associates with naked transparency. Lessig suggests that the solution to the problem of wrongly assuming that all politicians are corrupted by campaign contributions is to pass a generous public funding bill. But, as he knows better than anyone, a bill along these lines is unlikely to pass in the current political environment.
If legislators are unlikely to provide the kinds of solutions Lessig has in mind, there’s another group of officials who might be more amenable: judges. In complicated cases that call for a balancing of sometimes clashing values such as transparency and privacy, the judiciary seems uniquely well suited to play a mediating role. Unfortunately, as the recent debates over state secrets and reporter’s privilege suggest, current law doesn’t encourage judges to strike this sort of thoughtful balance.
First consider state secrets. As Ronald Goldfarb argues in his compelling new book, In Confidence: When to Protect Secrecy and When to Require Disclosure, the leading state secrets case is an illiberal Supreme Court decision from 1953 called Reynolds v. United States, which was brought by the widows of military pilots and crew members who were killed testing secret equipment after World War II. Without examining the relevant documents, the Court held that the government couldn’t be required to disclose the facts it deemed secret. Later, it emerged that the government had misled the Court and there were no state secrets–just an embarrassing record of errors that led to the unnecessary deaths of the crew members. But the Reynolds case continues to be invoked by courts as a shield for indefensible government action. In case of El-Masri v. United States, a German citizen sued CIA officials for kidnapping and torturing him in Afghanistan and then abandoning him in Albania after they realized he wasn’t the man they were looking for. The U.S. Court of Appeals for the Fourth Circuit upheld a ruling dismissing the case, on the grounds that the government shouldn’t have to risk “injurious disclosure” in defending even outrageous conduct.
There’s a clear solution to this judicial abdication: the pending State Secret Protection Act, sponsored by Representative Jerrold Nadler of New York. The law would give trial judges the authority to review state secrets claims in civil cases so as to prevent the privilege from being used as a cover-up for embarrassing governmental action. The government can assert the privilege, the act says, only if it can show that disclosure of the contested information “would be reasonably likely to cause significant harm” to national defense or diplomatic relations. But the Obama administration has remained silent about this legislation, preferring to revise its own internal guidelines to adopt similarly stringent standards for when the privilege should be asserted. As Senator Russ Feingold has noted, this policy of internal self-restraint sounds like the Bush administration’s “Just Trust Us” approach, and it is consistent with the Obama administration’s recent positions in a federal court case, where it endorsed the Bush administration’s approach to state secrets. (Tim Wu may be correct that internal controls are more significant than technological or political ones, but even the best intentioned administrations prove unable to restrain their worst instincts.) Because Obama has not supported it, the State Secret Protection Act seems unlikely to pass, and judges will continue to grant too much deference to the government, favoring secrecy over transparency.
Along the same lines, consider the recent controversy over the scope of reporter’s privilege. Former New York Times reporter Judy Miller refused to testify about her anonymous sources identifying Valerie Plame as a CIA operative. The U.S. Court of Appeals in D.C. unanimously affirmed the trial court’s decision requiring her to testify, and Judge David Tatel wrote a thoughtful concurring opinion noting that the case involved “a clash between two truth-seeking institutions; the grand jury and the press.” Rejecting a rigid approach favoring transparency or anonymity, Tatel insisted that judges had to balance the two values. In the Miller case, he said, the “low value of the leaked information” was outweighed by the seriousness of the investigation.
Another bill pending in Congress would essentially codify Tatel’s approach, requiring federal judges to balance the risks to security against the reporter’s need to protect sources. Unfortunately, the Obama administration has once again weighed in against this kind of thoughtful approach; its preferred alternative would require judges to defer to the president’s view of whether a news leak presents a “significant” threat to national security.
I can imagine reforms that would authorize judges to strike a balance between privacy and transparency in the cases involving secrets and the reporter’s privilege. But laws that would encourage judges to play this balancing role seem unlikely to pass, for the same reason Lessig identifies–namely, a growing distrust of intermediaries, and technologies that allow them to be circumvented. For these reasons, I fear that he has identified an urgent and growing problem that may not have a politically feasible solution.
Jeffrey Rosen is the legal affairs editor at The New Republic.
Part I: Why more transparency actually makes politicians less likely to act in the public interest, by Tim Wu
Part II: More scrutiny of government is the solution, not the problem, by Ellen Miller and Michael Klein
Part III: How the courts could strike a balance between the needs for transparency and privacy, by Jeffrey Rosen
Part IV: Greater transparency will build-not diminish-the public's trust, by David Weinberger
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.