Disclosure's Effects: WikiLeaks and Transparency

http://works.bepress.com/mark_fenster/10/">Disclosure's Effects: WikiLeaks and Transparency

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...Asserting that it is “part of that media” that spreads transparency, WikiLeaks contends that its publication of authentic documents leaked from governments and powerful private entities will expose “otherwise unaccountable and secretive institutions” that engage in unethical acts, and thereby help establish “good government and a healthy society,” “alter the course of history in the present, and . . . lead us to a better future.” This sequential narrative, in which information disclosure leads to a more engaged public, more democratic politics, and more efficient state, forms a core tenet of the transparency ideal. Information transforms; therefore, it must be disclosed.

A similar narrative plays the same role in concerns about the unauthorized disclosure of classified information. The laws and regulations that govern classification assume the state knows or at least can confidently predict disclosure’s ill-effects. The classification system, for example, is premised upon anticipating risk by sorting documents into the categories of “confidential,” “secret,” or “top secret,” based on the conclusion that the information they contain “reasonably could be expected to cause,” respectively, “damage,” “serious damage,” or “exceptionally grave damage” to the national security. The Freedom of Information Act explicitly exempts properly classified information from disclosure, protecting any document properly classified from release in response to a public request. The Espionage Act criminalizes, among other things, classified information’s unauthorized disclosure, again by presuming that authorized officials have reasonably anticipated disclosure’s danger in classifying documents. Constitutional Executive Privilege and State Secret doctrines rest on the parallel presumption that the threat of disclosure will affect the Executive’s ability to protect the nation and perform his delegated duties.

This sequential narrative, in which information disclosure impairs the state’s operations and endangers the nation, forms a core tenet of the transparency ideal’s limitations. Information transforms; therefore, it must be controlled.

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... There is no guarantee that a government document or meeting, when made public, will enlighten the public that sees it. And the reverse is equally true. There is no guarantee that government secrecy shuts down the flow of information or even conceals knowledge about government action. Nor is there any guarantee that disclosure will endanger the nation or adversely affect the government’s ability to deliberate or operate. In a complex democratic state and civil society, secrecy and disclosure rarely exist in pure forms, and they seldom have diametrically opposing effects. Information disclosure law and the theory that supports it rely upon the ability to predict and ascertain disclosure’s effects. But if we cannot predict them in advance, how can we hypothesize about, much less base laws upon, disclosure’s benefits and risks? .....