How Much Transparency Do We Really Want?

Americans, to their surprise, find themselves embroiled in a debate about privacy. And what makes it even more unexpected is that the outcome is no longer obvious.

Most people thought this issue had been buried under the weight of all the discounts online merchants proffered in return for some personal information. Americans, and many other peoples, responded with alacrity. Ten percent off at Starbucks? Sure, what do you want to know?

But then the revelations  began about all the emails and phone calls being subjected to checks by the government, that 3 percent of all American Facebook friends were being reviewed - by their own government (3 percent of a billion members is 30 million people...) and that businesses were using all that personal data they'd hoovered up to influence what advertisements, offers and news stories you see on your screen. The impending attack on Syria even has people wondering not what we might do to them but what they might do to us.

So, yeah, suddenly this privacy thing is getting, well, personal in a way that 'special' low-price offers are not.

At the same time, transparency is getting another look, as well. People say they want accountability, blue-sky laws and the like, until they are personally affected. Because that could be embarrassing, unsettling or expensive. The flip side of more societal transparency, Americans are learning the hard way,  is less privacy.

There is no answer per se. Americans are feeling their way - and sometimes not liking so much what their senses are reporting to their brains. That is probably to the good because it infers that they are at least becoming cognizant that there are choices to be made and that those choices have consequences, not all of which are what they once might have seemed. JL

William Galston comments in the Wall Street Journal:

Many Americans believed that the equivalent of a wall protected their email and telephone communications from government intrusion, only to learn that they were living in a virtual glass house. That these disclosures have set off shock and dismay should come as no surprise.

The controversy over NSA surveillance raises two distinct issues—privacy and transparency—that are often conflated. Privacy in today's world denotes a right or expectation that individuals are entitled to keep certain matters to themselves unless they have consented to disclose them, or unless there is a compelling justification for their disclosure. In this sense, privacy and opacity go together.

Transparency is very nearly the opposite of privacy. In the current controversy, it is a demand that the government make public matters it conducts in private and wants to keep private.

The argument for disclosure goes like this: If the government is acting in the name of the people, the people need to know what their government is doing. How else can they judge these activities? Democratic government means accountability to the public, and accountability requires disclosure. History testifies to the link between secrecy and the abuse of public power. Without disclosure, the people will find it difficult to restrain government's excesses—most importantly, secret activities that could endanger our liberties.

Government transparency has a distinguished history. In 1795, Immanuel Kant propounded what is often called the principle of publicity: Roughly, if you cannot reveal the principle that guides your policy without undermining that policy, then the policy itself is fatally flawed from a moral point of view.

Little more than a century later, in his famous "Fourteen Points" speech about U.S. war aims and the principles that would guide the peace, President Woodrow Wilson called for "Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view."

The problem here is obvious: Policy makers often face a choice between private diplomacy and no diplomacy. Secretary of State John Kerry clearly thought that the precise content of his shuttle diplomacy between Israel and the Palestinian Authority had to be kept from public view if there was to be any chance of restarting peace talks. A measure of secrecy is a necessary (if not sufficient) condition of success.

This maxim applies broadly. No one thinks that nations at war have a responsibility to make their military strategy public. If the Allies had not succeeded in confusing the Germans, the Normandy landing might have failed.

The same consideration of secrecy applies to the acquisition of intelligence. Government officials believe that revealing the details, or even the existence, of secret surveillance programs would help our adversaries elude their reach. They also believe that briefing more than a handful of elected representatives would lead inevitably to public disclosure. Those who do receive briefings are sworn not to reveal their substance, even in congressional debate.

Effectiveness and accountability collide—a tension that can be managed more or less well but never entirely abolished.

In the wake of Vietnam and Watergate, Congress and the executive branch pieced together a new strategy for managing this tension. Institutions such as congressional intelligence committees and the Foreign Intelligence Surveillance Court would ensure executive branch accountability while preserving necessary secrecy.

The current surveillance controversy challenges the entire post-Watergate regime. Many members of Congress have come to doubt that the intelligence committees permit sufficient accountability; an increasing share of the public now doubts that the system established by the 1978 Foreign Intelligence Surveillance Act adequately protects privacy.

But what is to replace it? If secrecy is diminished in the name of public accountability and individual liberty, are we willing to sacrifice a measure of security?

Yet the relation between collective security and individual liberty is not zero-sum. Because another 9/11-scale terrorist event might well lead to even more intrusive antiterrorism measures, reducing the likelihood of such an event could end up preventing serious infringements on liberty. Up to a point, liberty and security can be mutually reinforcing. But at what point do they become opposed?

This is not a judgment that can be left to experts in the executive branch. Ultimately, the people, acting through their elected representatives, must decide—and it is hard to see how they can do so unless all representatives, not just a select few, have the information they need to participate in such a decision.

As we learned in the 1970s, however, public deliberation on intelligence matters is anything but cost-free.