Transparency and Privacy: A vision for a new digital democracy
Transparency advocates and privacy advocates live on different planets. Both advocate for the common good, but at first glance their outlooks appear diametrically opposed. Broadly speaking, government transparency advocates want to see what the government is doing, either to improve its operations or limit its power. Privacy advocates focus on keeping personal information private unless voluntary, knowing consent is given. They believe government must be kept on a tight leash because of its power to demand, use, and disseminate personal information.
The tension between transparency and private advocates covers a wide range of activities. It is evident in laws comprising the Freedom of Information Act (FOIA), for example. FOIA requires federal agencies to release information to the public upon demand except in certain circumstances. Among the exemptions from disclosure is when a request concerns information that constitutes a personnel, medical, or similar file the release of which constitutes a clearly unwarranted invasion of personal privacy. Other exemptions apply to different aspects of personal privacy. There is a balancing of interests.
Indeed, government transparency is one of the keys to protecting personal privacy. Only through transparency can we see the laws, regulations, and guidance that govern how our society operates, including the restrictions on private parties who collect, use, and sell private information. Only through transparency can we know the kind of information the government collects about citizens, how it puts it together, and how it is used. Transparency allows us to police the boundary of what becomes public, what does not, and who gets to decide. Indeed, transparency and privacy interests intersect in governmental use of personal information and government regulation of third party handling of personal information. (Even if you believe the government's role should be only to allow agreements between private parties on handling personal information, government must provide the enforcement mechanism.)
Unfortunately, federal laws are clunky in our database-driven era. When government published information and formats that are difficult for most people access, such as largely inaccessible paper repositories that require special knowledge to find, in effect there was privacy through obscurity pierceable only by the supremely motivated. This created information asymmetries where the wealthy and the powerful exercised control over the poor and the powerless. The FBI as controlled by J. Edgar Hoover acted as a significant albeit scary form of social control, as did banks and credit card companies that effectively decided who got to live where. Yet even these behemoths could not afford to catalog, organize, and mine every piece of data about every person.
Nowadays, every snoop who sets up shop in a shed can obtain troves of information.
Government data sets, whose comprehensive creepiness was limited by the ability to collate the information, are now capable of empowering the kind of monitoring that should make everyone uneasy. And the legal protections around private information held by the government are a virtual Fort Knox compared to the laws governing private corporations. Private corporations can easily deduce your social security number, the route you take to work, and even whether you are pregnant. Federal law has not kept up.
What is needed is an alliance between privacy and transparency advocates. There is a common interest: the understanding and circumscribing of power. The first step must be developing a shared understanding of one another's language, legislative triumphs and setbacks, and vision for a new digital democracy. The information genie cannot be put back into a bottle, but perhaps it can be tamed.