From the Winter 2011 issue of The News Media & The Law, page 23.
The recent controversy surrounding WikiLeaks’ disclosure of U.S. diplomatic cables has once again stirred the debate about how technology and computers affect — for better or for worse — the right to receive and distribute government information.
But, as anyone who has tracked the legal, academic and societal evolution of the issue knows, such debates have raged for decades. Moreover, the controversy continues to revolve around similar themes, such as personal privacy protection, and the ability to amass and disseminate large amounts of information and data accurately and securely.
Many of these same concerns can be traced back to Samuel D. Warren and Louis D. Brandeis’ foundational 1890 Harvard Law Review article arguing for a legally recognized “right to privacy” in light of technological advances that threatened the “right to be let alone,” such as instant photography — a seemingly quaint conception of a technological threat these days.
And such anxieties about the government’s collection, use and disclosure of information have shaped the public’s legal rights of access to government records. They served, for example, as the impetus behind such federal legislation as the Privacy Act of 1974, a law that, among other things, prevents the disclosure of certain electronic records that are retrievable by individual name or other personally identifying criteria without the consent of the record’s subject.
In passing the act, Congress found that “the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use or dissemination of personal information.”
Purported personal privacy concerns were also at the heart of the landmark 1989 U.S. Supreme Court decision in U.S. Department of Justice v. Reporters Committee for Freedom of the Press; a case in which a unanimous court held that the personal privacy rights of alleged organized crime members trumped the public’s right of access to computerized FBI “rap sheets” that compiled an individual’s nationwide criminal history into a single file. In the court’s words, “there is a vast difference between public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single file.”
WikiLeaks stands as the latest in a long line of technological platforms to emerge that have raised similar concerns about data collection, security and dissemination. Lawmakers and the Obama administration are seeking ways to prevent and punish unauthorized data disclosures through various legal means. Perhaps now more than ever the relative ease of gathering massive amounts of data and placing it online for literally everyone in the world to freely see will, at the least, linger in the subconscious of government information policy officials. Invariably they will ponder questions like “what if these kinds of records wind up on a site like WikiLeaks?” before deciding to compile, share or publicly release government information.
Yet governments continue to adopt electronic records collection and dissemination practices that allow for cheaper, faster and greater distribution of information. For example, President Barack Obama’s December 2009 Open Government Directive requires federal agencies to develop plans to place greater amounts of public information online. Additionally, jurisdictions across the country are adopting policies regarding electronic, public access to court records. It appears these opposing policy objectives are destined to one day clash headon as government continues to move toward electronic systems.
But it need not be a zero sum game when public access rights come with corresponding damage to personal privacy or national security. Information’s public status should not be determinatively judged by the medium in which it is held. The preferred approach, some would argue, would be to focus instead on the actual substance of the data. Protecting against true — rather than hypothetical or assumed — threats to concerns such as personal privacy or national security, and developing secure records systems designed to prevent the unauthorized collection or dissemination of information.
David Cuillier, an associate professor at The University of Arizona’s School of Journalism and the Freedom of Information Committee Chair for the Society of Professional Journalists, disagrees with the idea that electronic records formats should be treated differently than paper counterparts. “If it’s public, it’s public. It bothers me when journalists agree to format restrictions because it emboldens government.”
Some recent efforts to place court records online demonstrate the great public value of doing so, while also exposing the often over-hyped concerns regarding data security and personal privacy. The Manatee County, Fla., clerk of the Circuit Court, R.B. “Chips” Shore, first began placing court records online about 11 years ago. After receiving resistance from the state legislature and court system, Shore helped make the case before the Florida Supreme Court to allow Manatee County to conduct a pilot study on how best to proceed with placing court records online. Since then, he has developed a system where court records remain open online while sensitive information contained within them, such as social security numbers and financial data, is automatically shielded from public view. The system further builds in various levels of access depending on the party seeking the information. The public generally receives access to all non-sensitive information they would have a right to inspect in paper form, while party litigants, attorneys and judges receive enhanced access.
In March 2010, the site went fully public and Shore said he has received “no complaints at all.” Instead, “I get compliments from all over,” Shore said. “I’ll have reporters and editors say they can’t believe what they can get from our site.” Shore has also built in security features into the site, giving the public access to a “mirror” site that is not the actual site, thereby preventing hackers from gaining access to unauthorized information on the original website.
Cuillier echoed the belief that privacy concerns are often overhyped. “When I was a journalist, we had some battles over computer data. I think we are kind of getting over that.” Cuillier stated that today he can go to the Arizona State Supreme Court website, input a name and get similar compiled information about an individual that was of concern in the Reporters Committee case. “I’d like to see us move beyond that case. [Computerized access] is really not that scary.”
But Cullier conceded that there are two competing movements within government and society. While there has been a “creep toward privacy,” Cuillier stated that we may also be in the midst of a cultural shift regarding attitudes toward personal privacy and what information should be readily available online or in electronic formats. “As the next generation becomes more online literate and are posting everything on Facebook, they will be accustomed to having information online,” Cuillier said. Cullier would like to see research on whether concerns over online information are in fact generational. “It’s a good question. It’s about information control for many, I think.”