TNR Debate: Too Much Transparency? (Part VI)

by Lawrence Lessig | October 19, 2009

I had hoped my essay, "Against Transparency," might have inspired something of a marriage between the transparency movement and campaign finance reform. To that end, I had offered something old and something new, something borrowed, and, as is my style, something blue. But like high school all over again, I have obviously fumbled on the first date

Let's work this backwards.

Something blue: Yes of course my piece is "worr[ied]" (Weinberger) and "gloomy" (Miller/Klein), even "dour" (Abrams), as the commentators say. Of course it is. Dark is my color, and if you're in DC and not, then delusion is yours.

Something borrowed: Many have noted that "transparency" is a mixed good. Obviously, it is great in lots of contexts. The work of Carl Malamud, liberating government documents, to name one example I didn't discuss. The work of, to remark one I did. The transparency Jeff Rosen's gloomy essay calls for, to name a third. But equally obvious should be the point that I lifted from Archon Fung and his colleagues: "Whether and how new information is used to further public objectives depends upon its incorporation into complex chains of comprehension, action and response." Thus, where the data can't be understood, or doesn't say anything to be understood, it won't be used to "further public objectives." This point led me to the only thing in this essay that is, for me at least:

Something new: What do we do about the bad stuff that comes from this otherwise and often obvious good? The answer, I suggested, comes from linking this question to a structurally identical question in two other digital domains.

Take recorded music as the obvious first example. The Internet has made it trivially easy to "share" all sorts of content, including content protected by copyright law. Call that point 1. Point 2 is that that sharing has threatened important industries of culture. Put points 1 + 2 together and you invite three kinds of responses: Some think 1 + 2 means that we should kill the technology that enables 1. (This is the response the RIAA's behavior suggests, even if that's not what they mean.) Some think 1 + 2 means "too bad, so sad" for 2. (That's the response of too many in the Free Culture movement. "So what if the professional or commercial culture suffers? Who needs it? Let it go the way of opera, or barbershop quartets. But whatever you do, don't question the brilliance of 1." )

And some (me included) think that 1 + 2 means we need to celebrate the good in 1, while working out how to minimize the harm recognized in 2.

My essay made the same point about journalism. The Internet (and Craigslist) have radically increased the competition faced by newspapers. Call that point 1. Point 2 is that this pressure has threatened an important institution of democracy--journalism. And once again, when you put 1 + 2 together, you invite three kinds of responses: Some who scorn 1 because of 2. Some who ignore 2 because of their love of 1. And some who think we need to celebrate 1, but think again about how to avoid the costs of 2.

Once again, I am in the third camp. Craig is a hero; free access is an enormous good. So now let's get onto the hard question of how we assure the vigorous journalism a democracy needs.

These two examples were offered to suggest the pattern into which I believe the transparency debate falls. Here again: The Internet (and the Sunlight Foundation among others) have radically increased our effective access to important data about our government. Call that point 1. Point 2 is that some of these data don't actually compute--either because the data doesn't say anything (its imputed meaning notwithstanding) or because to understand what it says requires attention beyond the scope ordinary folks would rationally give it.

And so I suggested, here again, there were three sorts of responses: Some who would veto 1 because of the damage misunderstanding produces. Some who ignore 2 because of the obvious good in 1. And some who celebrate the good in 1 while thinking about ways to minimize the harm in 2.

Obviously, I am in camp three. My essay explicitly rejects the idea of undoing the trend towards openness--just like I believe we should stop waging a copyright war against our kids, and just like I believe we should praise not punish Craig and Google News. But my essay is also honest about the harms that predictably-misunderstood data will produce. And in the context of campaign finance, at least, I therefore offer one solution (citizen funding of congressional elections) that would go a long way to neutralizing some of the cynicism that the current system inevitably invites.

Yet as I read at least some of the responses that The New Republic has collected here, I fear the real problem behind our spat relates not to the argument I actually make, but instead to:

Something Old: It was almost a decade ago at a conference organized by Jeff Rosen that I first suggested we need to think more about the attention span problem--the harm that gets produced when readers rationally devote less time to understanding something than that something demands. For I suspect it is the fear of the attention span problem that explains much of at least Weinberger's and the Sunlight Foundation's reply.

Weinberger is explicit about the concern. He states directly and accurately that "Lessig isn't exactly ‘against transparency.'" As he explains, "[h]e's against transparency as the sole requirement for political reform."

But he is worried about the "take-away" (or maybe the twitter version) of what I've said. Will this more complicated argument--what I've called, camp 3--be understood? It's a fair question--especially as Weinberger seems to have forgotten the point by the end of his brief essay, when he writes, "[R]ather than diminishing transparency as the default, Lessig ought to embrace it as an essential component of his important anti-corruption reform." But again, I don't diminish it as a default; I do embrace it as a "component" of reform. My argument is simply that we need to be more honest about it not being the only, or as Tim Wu puts it, the "miracle cure" of reform.

Similarly with Ellen Miller and Michael Klein's response. They charge "the logical extension of [my] argument is that the only way to restore public faith in government is to [end transparency]." But whether logical or not, that is the response I explicitly reject. The way to restore public faith (or at least the part weakened by the kind of transparency I am concerned with) is to remove the economy of influence that leads people to be so cynical: citizen-funded elections.

Or again: "We argue that more transparency in politics will enable a healthy dynamic of rising public attention and engagement in demanding more accountability from government.

Sounds good. But is it true? What if it leads more people to simply tune out? What if it confirms what they already suspect--that the system is corrupt? Obviously Miller/Klein understand their claim is an empirical one. Obviously they get that their response didn't even engage the reasons I offer for worrying that my empirical prediction is more likely than theirs. But obviously, few will connect the dots to notice that gap; more will simply hum the slogan.

I get the urge of the Sunlight Foundation to deflect one obvious misreading of what I wrote--that their work is harmful, or useless, or both. I don't believe that. As I said, much of the transparency work they've done is unambiguously good. And when tied to a movement to reform the economy of influence that is DC, even the ambiguous reform is, in my view, good. I promise to use whatever data Sunlight, or even better, the great produce to the end of embarrassing, or shaming, or pressuring Congress into changing its influence economy fundamentally. As Harvey Milk said, you got to give them hope. And if anything is hope in Obama's DC, I should have thought change is.

But I don't get the wisdom of deflecting through dodging or misrepresentation. My argument is that these data have no meaning. So training bloggers and journalists, as Miller/Klein insist we do, doesn't solve that problem. Likewise with the "most of our efforts" spent creating "tools and sites to help draw meaning from the information we help put online." My concern was data from which meaning can't be drawn. Rather than dodge the category, a stronger response would have addressed it.

Or finally: They say I am "worrying far too much about a parade of horribles that have yet to emerge." Yet in the very next sentence, they write, "the public's regard for the institutions of government is … sadly already where Lessig says he is afraid it will go." So now that we're "already" watching the "parade," again, I should think we need something more than a slogan ("improving transparency … is the very basis for restoring that trust"). Sensible strategy needs an argument.

Much the same applies to Floyd Abrams's response. He nicely summarizes the concern about what I've called ambiguous data. But then he charges me with the RIAA's strategy: that I am "objecting to the release of information" or that I believe Clinton's contributors should have "remained undisclosed." Wrong, counselor. I don't condemn the transparency. I accept it, and celebrate it, but wonder how we can avoid the costs that some of it inevitably produce.

Abrams even seems to doubt there are such costs. In response to my example about the switch between First Lady and Senator Clinton, he writes, "There was no great public outcry…. It was not a serious issue when it occurred and was not an issue at all when she ran for the presidency." He's wrong about the outcry at the time; and wrong about the effect of this (and other similar stories) on her campaign. This was a "dog bites man" story, that confirmed in the minds of many just why the candidate who defended the role of lobbyists was not the change candidate America needed.

The saddest part in Abrams' reply, however, is the charge that the reform I proposed--the "Fair Elections Now Act"--is a "constitutional non-starter." Abrams writes that he finds "the public financing option an attractive one, but only as an option." But then he criticizes both the proposal (as unconstitutional) and me (for "minimizing" or "totally ignor[ing] the harm caused when speech is stifled in the name of reform").

Yet here again is the attention span problem: It would have taken six seconds and a Google search to recognize that the Fair Elections Now Act is "an option," and thus doesn't at all stifle speech "in the name of reform." But who has time for such details when a snide ending to a brief essay is needed!

Tim Wu is right. Reform won't come from the outside alone. And Jeff Rosen is right. The reform that we need on the inside--changing the economy of influence that is DC--is currently politically unlikely. But these two points leave me where I started: That Rosen is right because too many believe as Wu charges--that the "naked transparency movement" is a magical cure. It isn't. It is one part of a two part (at least) reform to get America to see why change is needed, while giving them a picture of what good change would do.

Lawrence Lessig is professor of law and director of the Edmond J. Safra Center for Ethics at Harvard Law School, and the author most recently of Remix: Making Art and Commerce Thrive in the Hybrid Economy (Penguin). He is on the advisory board of the Sunlight Foundation and on the board of

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

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