Privacy Paradox

Transparency as Voyeurism

By Paul Rosenzweig
Tuesday, September 5, 2017, 11:11 AM

This piece is part of a series on Tim Edgar's new book, "Beyond Snowden."

Tim Edgar’s new book, "Beyond Snowden," prompts a number of reflections. One virtue of a book like this by a knowledgeable insider is that it provides a veritable cornucopia of issues to discuss and consider–it is a happy invitation to readers (like those who read Lawfare) to come together in convivial disputation.

But a short essay of the sort invited for this mini-symposium cannot plumb the depths of the many issues that Edgar brings to light. And so, though there are many points of the book with which I wholeheartedly agree, to provide an interesting and useful counterpoint, I will content myself with response to a single aspect of the book with which I have gentle disagreement–Edgar’s reification of the value of transparency. Edgar sees increased transparency in the IC as a positive change that needs to go further–indeed, it seems to me that this is the grand theme of his book. Where Edgar sees promise, however, I see a need for caution.

Clearly, America has a set of longstanding principles fostering government transparency and the related freedom of the press. The latter right is, of course, enshrined in the First Amendment. In cases from an earlier era, like the Pentagon Papers, we developed a series of rules that favor transparency by, for example, allowing the press to publish classified information.

But these legal principles are not, in my view, intended as a means of ensuring governmental transparency for transparency’s sake. Rather transparency has, I think, a more limited (but more important) role in our constitutional system–it is a principle in service of the greater objective of checking malfeasance, misfeasance, and nonfeasance by government officials.

A fair assessment is that the norms of transparency in national security are changing before our very eyes–from my older vision to Edgar’s newer one. As Fred Kaplan, the Edward R. Murrow fellow at the Council on Foreign Relations, wrote in 2013:

It may seem odd for someone who has been reporting on national security matters for a few decades to say this, but just because the government is doing something in secret—and just because a leaker tells someone like me about it—that doesn’t necessarily mean it should see the light of day. That is especially so if the secret activity in question doesn’t break laws, expose deceit, kill people, violate basic decency, or … (feel free to add to this list).

This traditional view of the role of transparency (and the press)–as responsible for ferreting out wrongdoing–reflects a long-understood, difficult, balance between secrecy and transparency.

But in the post-Snowden era, transparency as an independent value has taken center stage. To cite but one example (of many) in 2014 the New York Times published an article about NSA intrusions into Chinese computers. The report suggested that the NSA had successfully put a program in Chinese systems that allowed access to Chinese communications–something that, at least on its face, was precisely what we would want the NSA to do.

Publication of the story met none of the criteria that Kaplan had articulated less than a year earlier. As Jack Goldsmith noted on Lawfare:

[T]his article shows how much publication norms have changed in recent years. . . . This is a story about the technical means and methods of surveillance against foreign countries, including our military adversaries, Russia and China. . . . I imagine that [reporters David] Sanger and [Thom] Shanker would say . . . [that] revelations about the NSA (including ones related to this story) are pouring out from scores of sources abroad, and that if they do not report this story someone else will. If these are the arguments, it is hard to see what NSA secrets the [New York Times] would not publish.

I agree with Goldsmith’s assessment–it appears that the growing degree to which government surveillance is becoming part of our daily lives is leading some, including some in the press, to resist that expansion. They push back, hard, against what they see as overreaching and seem to have reached the point where they think that transparency about every form of surveillance is newsworthy precisely because so much of it is new, different, and possibly threatening to civil liberties.

That sentiment seems to me to be one with which Edgar is sympathetic. I think, however, that is profoundly wrong. Consider one case–the 1988 prosecution of Samuel L. Morison, a staffer at the Naval Intelligence Support Center and part-time writer for Jane’s Defence Weekly. He was charged and convicted under the Espionage Act for providing Jane’s with a classified photo of a Soviet aircraft carrier.

Some might say that Morrison did the country a service–by making Soviet military capabilities transparent–and call him a First Amendment hero. Others might say he leaked classified information to the press and was a traitor. The Fourth Circuit recognized that there was some truth to both perspectives:

The First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security.’ … [but] Public security can thus be compromised in two ways: by attempts to choke off the information needed for democracy to function, and by leaks that imperil the environment of physical security which a functioning democracy requires. The tension between these two interests is not going to abate, and the question is how a responsible balance may be achieved. … Where matters of exquisite sensitivity are in question, we cannot invariably install, as the ultimate arbiter of disclosure, even the conscience of the well-meaning employee.

And that, in a nutshell, defines where I part ways with Edgar. Even were I to accept that Snowden was a “well-meaning” employee (I don’t–but that’s another story altogether) I would be cautious about expanding a system that advances transparency as a virtue in its own right. Transparency without the ground of accountability is just voyeurism.