Hallmarks of the Emerging New Paradigm: Transparency

In recent posts, I described some of the general features of paradigms and the process by which old paradigms are abandoned and new ones embraced. Next, I’ll discuss (in no particular order) some of the characteristics of the paradigm that interests me. Perhaps some of these ideas interest you, too.

Transparency

Caitlin had gone on a date once with an attorney who worked at the National Security Agency. The man was forever barred from speaking about his work and seemed to look for hints of untrustworthiness in Caitlin’s conversation. She declined the offer of a second date, thankful her job didn’t require Top Secret authorization.

Chapter 8, A Moment of Time*

The theme of transparency has been in the news lately, with revelations by Edward Snowden about the National Security Agency’s data-gathering activities. The systems administrator left his job and his country, knowing he would be prosecuted if he stayed in the U.S. after he disclosed classified information (and he has since been charged with espionage).

Snowden revealed the existence of surveillance programs in which the National Security Agency collects records of telephone calls and Internet usage by millions of Americans. These data-gathering programs operate under (secret) court supervision. Snowden says he only released documents that were in keeping with (his idea of) the public interest, as “harming people isn’t my goal. Transparency is.” Disillusioned with government policies, Snowden says he slowly realized that “presidents could openly lie to secure the office and then break public promises without consequence.” [1]

The scope of the NSA programs has sparked renewed debate about the balance of individuals’ rights to privacy and the federal government’s need to track potential threats to national security, and has increased awareness about the need for transparency. (The Transparency and Accountability Initiative defines transparency as: “a characteristic of governments, companies, organisations and individuals that are open in the clear disclosure of information, rules, plans, processes and actions.” [2])

Before he was President, Barack Obama vowed to end the Bush administration’s “illegal wiretapping of American citizens.” [3] Of course, “illegal” acts are defined by law; if Congress passes a law making domestic wiretapping legal, then of course security and law enforcement officials are going to engage in these practices. Anyone who was paying any attention at all when the Patriot Act was signed into law will not be surprised by any of this (“This new law that I sign today will allow surveillance of all communications used by terrorists, including emails, the internet, and cellphones” [4]). Well, terrorists are not the only ones who send emails, use the Internet, and hold conversations on cell phones. Yet concerns about privacy and government intrusion into the lives of law-abiding citizens have been overridden repeatedly by those emphasizing fears about terrorism.

Snowden’s actions follow on the heels of disclosures that the Department of Justice used a secret subpoena in 2012 to seize phone records of journalists at the Associated Press (AP) as part of an investigation into a leak to the AP of information about a terrorist plot. [5] Attorney General Eric Holder recused himself from the investigation to avoid a potential conflict of interest. Deputy Attorney General James M. Cole approved the subpoena.

Senator Chuck Grassley of Iowa, the ranking Republican on the Senate Judiciary Committee, issued a statement urging the Obama administration to be “transparent with its rationale for such a sweeping intrusion and detail whether the process outlined in regulation and the U.S. attorney’s manual were followed and justified for national security.” [6]

The problem with these secret actions is not that government officials perform some of their duties without informing the public; some secrecy is desirable and necessary. The public entrusts its representatives with the power to carry out certain functions on behalf of the country and its citizens. Officials are not perfect; they will mess up sometimes. We just ask, and rightfully expect, that they will uphold certain standards and act in accordance with certain principles (self-interest is not one of them). The problem is that many of these steps are being taken without adequate oversight. Officials sometimes make decisions that affect large numbers of people without the approval of any elected representatives.

If secret actions improved the lives of the country’s citizens (such as anonymous donations to charity), perhaps fewer objections would be raised. Too often, however, activities that are shrouded in secrecy protect the interests of the few rather than the many, disregard the welfare of affected individuals, and fail to take ethical considerations into account. Consider, for example, that “The Central Intelligence Agency drugged American citizens without their knowledge or consent. It used university facilities and personnel without their knowledge.” [7] Or, that Native American women were sterilized by the Indian Health Service. (No, not in the 1870s. In the 1970s.) [8]

History is replete with examples of persecution (and extermination) of individuals because of their beliefs, practices, gender, race or ethnicity, whether by misguided (if not psychotic) rulers of church and state, angry mobs, or powerful enemies. Some laws are designed to protect groups that have been shown to be at risk; other laws are designed to protect the interests of wealthy and powerful individuals and enterprises.

Some administrations loosen restrictions on the release of information to the public by federal agencies; other administrations tighten them. [9] President Obama entered office with high ideals about his administration’s practices:

“My administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

President Obama, 01/21/09 [10]

In 2009, the Food and Drug Administration (FDA) launched a “Transparency Initiative,” an agency-wide effort to “open the doors of the agency and promote innovation, in a manner compatible with the agency goal of appropriately protecting confidential information.” [11] The FDA started a blog to provide information to the public about what the agency is doing, the bases for decisions, and the decision-making process. [12]

Subjective Perspective

Transparency is a worthy goal, but who is in the best position to assess efforts toward its achievement? As with other issues that require balancing of public and private interests, people can have very different ideas about the appropriate allocation of power and authority. If your work concerns public health, you probably believe that mandatory vaccinations are desirable in spite of potential side effects, whereas a citizen who attempts to stay educated and informed about prevention and treatment options may prefer to assess health risks and benefits himself. A trained security specialist will see potential threats that the average citizen would not notice, and his training will help him avert some disasters. The security specialist will probably favor having as much information about others as the law allows, while maintaining secrecy about his own identity and activities. 

Danger is inherent in living. Experience teaches us to take reasonable precautions, whether that means protecting ourselves from wild animals, from harsh elements, or from other tribes that may wish to enslave our people or steal our land. But experience varies greatly—by time, place, and as the result of individual choices—and we all reach different conclusions about how safe or dangerous the world is. If you are an adventurous sort, you will seek thrills and the dangers that accompany risk-taking, whether through high-risk investments or extreme sports. Others desire a peaceful existence and abhor war—a difficult position to maintain when so many of the world’s practices result in bloodshed and violence. Advocates for peace become easy targets for aggressors—until the balance tips and there are enough people demanding peaceful resolutions to conflict and greater opportunities for all to prosper. As citizens of a democracy, we can (in theory, anyway) elect representatives who share our views on important matters.

In a televised interview, President Obama defended the National Security Agency spying programs, calling them “transparent”—even though they are authorized by a secret court. [13] President Obama believes that “modest encroachments on privacy” are necessary to prevent terrorist attacks. [14] His definition of “modest” probably differs from mine.

Privacy Matters

Open meeting laws and mandatory disclosures of information by governmental bodies help increase public awareness about government programs and activities. However, actions such as those taken by the NSA and the DOJ don’t just raise questions about the transparency of government programs; important privacy interests are also at stake.

Senators Ron Wyden and Mark Udall have been sounding the alarm about secret surveillance of American citizens for years, but support for bills authorizing surveillance has outweighed opposition and proposals to incorporate privacy safeguards have been rejected. [15] Meanwhile, the NSA’s Utah Data Center is set to open this fall. The top secret “data farm” will harvest emails, phone records, text messages and other electronic data, at a cost to taxpayers of an estimated $20 million per year. NSA plans another data farm at its headquarters in Fort Meade, Maryland. [16]

In 1974, Congress passed the Privacy Act to curb illegal surveillance and investigation of individuals by federal agencies. The Act recognizes the rights of individuals to be protected against “unwarranted invasions of their privacy stemming from federal agencies’ collection, maintenance, use, and disclosure of personal information about them.” [17]

Balancing needs and interests of governments and citizens is an ongoing task, and other considerations enter into the equation, as governments also must interact with other governments, regulate industries and oversee trade and commercial enterprises. If appointed officials have financial ties to the industries they regulate, citizens have (or should have) a right to know about potential conflicts of interest.

Caveat Emptor

How much product safety information must be given to consumers by the companies that manufacture them? Do consumers have a right to know what is in their food—and whether that food has been genetically altered? Which additives need to be listed on labels, and what claims about product efficacy or nutritional value can or must be included? Consumer advocates, documentary filmmakers, and not-for-profit organizations help raise public awareness about the dangers of some products and industries and push for mandatory disclosure and labeling requirements. Manufacturers often resist efforts to require full disclosure of information that might deter consumers from using their products. Differing views about capitalism and free enterprise and the proper role of government complicate solutions that might otherwise seem sensible and straightforward.

Forbes contributor Kevin Coupe argues that resistance to labeling requirements creates uncertainty and mistrust. “Part of the concern on the part of Monsanto and other companies in the GMO business,” Coupe writes, “seems to be that if such products containing GMOs are labeled as such, it will scare people.” [18] This is the same argument that was used by the dairy industry when artificial bovine growth hormone (developed by Monsanto) started appearing in the U.S. in 1994. Dennis Wolff, Pennsylvania’s agriculture secretary (and dairy farmer), tried to ban rbGH-free labels on milk in Pennsylvania in 2007 (“phrases like ‘pesticide free’ and ‘antibiotic free’ . . . are confusing for consumers because they suggest that milk without those labels contains pesticides or antibiotics.”) [19] (Pennsylvania’s governor overturned the ban, stating, “The public has a right to complete information about how the milk they buy is produced.” [20])

The failure of health officials to warn people about potentially harmful side effects from vaccines and vaccine preservatives was based on a similar line of reasoning. (A 1996 MONEY Magazine article by Andrea Rock urged the government to “Stop hiding facts. When federal health officials and pediatricians refrain from warning the public about risks out of fear that parents will stop immunizing their children, they insult parents’ intelligence and endanger the public’s health.” [21])

Whole Foods Market co-chief executive officer Walter Robb declared earlier this year that the company would require labeling of all products containing genetically modified organisms (GMOs) by 2018. “. . . [I]ssues around water quality, farm workers, all that stuff, keep surfacing. There will be no place to hide in terms of what your practices are and what you’re doing.” [22]

Indeed. We’ve entered a new era, and must navigate how much information we can, should, and must reveal, and to whom. The accessibility of information through the World Wide Web has created new opportunities and new challenges as we collectively search for the appropriate balance between freedom and privacy.

The availability of information, in itself, may not be enough to ensure that the goals sought to be achieved by transparency measures are fully realized. Information must be available in forms that are readily understandable and usable. It also must be accurate and provided in a timely manner. [23] Think about the stacks of documents that a corporate defendant might send plaintiffs’ attorneys in response to a discovery request during civil litigation, or the amount of information that might be released to a journalist who requests documents under the Freedom of Information Act (FOIA), or the numerous tips received by authorities during the hunt for the bombing suspects in Boston—that’s a lot of information to sift through, and time and personnel are needed to find the potentially important data. (And information provided by private citizens did help law enforcement officers apprehend the Boston bombing suspects (Tsarnaev brothers) after officials decided to 1. release photos of the suspects and 2. lift the shelter-in-place order that had shut down the city of Boston. [24] Let’s not forget that we’re all in this together.)

I’m not sorry that would-be terrorists, whether individuals or corporations, are finding concealing questionable acts more difficult with the advent of affordable James Bond-like technologies that are accessible to consumers (and governments have far more powerful tools at their disposal), but I do worry about the massive amount of personal data that is available to advertisers, scam artists, and investigative authorities—for when information falls into the wrong hands, the consequences can be lethal to innocent victims and individuals who have committed no wrongdoing other than being born to a religion or race or sexual orientation that some consider reprehensible, or who choose to speak openly about topics that threaten the interests of powerful individuals and organizations.

Of the People, By the People, and For the People

Managing a large corporation or a country is a complex undertaking, and many considerations must be weighed. Many matters must be delegated. Some secrecy is important, whether to protect plans that are in development, or to thwart true threats from those who seek to do harm. Specialists are needed, and we must be able to trust our elected officials. But we also need to maintain vigilance, and guard against the accumulation of too much power in the hands of a few, or we will find ourselves living in a society that is, in practice, far from its stated ideals of “liberty and justice for all.”

A healthy democracy requires informed citizens; a healthy populace is able to make educated choices. How can you choose wisely if you are not informed? How can you engage in debate if you are not part of the process? How can you receive justice if you are not given access to courts, attorneys, and documents? The way a question is framed shapes the answer that will be given. When you are ill-informed, you often don’t even know what questions to ask. 

Would you trust an enlightened master to make selfless decisions that contribute to the greater good? Such individuals live simply because they are not caught up in selfish ambitions; they see through the illusions of the temporal material world and value deeper truths. But such individuals are in the minority (and probably lack the qualities that appeal to voters) and anyone, at any stage, is susceptible to the lure of temptation. Perhaps someday the percentage of enlightened individuals will be greater and society will be restructured, with less need for surveillance and defensive measures. Until that time, we must safeguard our liberty as well as our property. Terrorism is a real threat—but so is abuse of power.

Transparency is just one feature of the emerging new paradigm, but it is an important one. People cannot be held accountable for their actions if their actions remain unknown. Corruption remains undetected, and lies pass for truth–until someone shines a light on the situation.

–Jilaine Tarisa

*In A Moment of Time, attorney Caitlin Rose takes a stand when her boss pressures her to dismiss a case concerning the vaccine preservative thimerosol. E-book available now. Click here for more information.

References

[1] Barton Gellman and Jerry Markon, “Edward Snowden says motive behind leaks was to expose ‘surveillance state,’” The Washington Post, June 9, 2013 (Retrieved June 17, 2013) http://articles.washingtonpost.com/2013-06-09/politics/39856602_1_nsa-ron-paul-intelligence

[2] The Transparency and Accountability Initiative web site (Accessed July 12, 2013) http://www.transparency-initiative.org/about/definitions

[3] Sarah Wheaton, Alyssa Kim and Christopher Cascarano, “Obama on Surveillance, Then and Now,” The New York Times, June 7, 2013 (Retrieved June 17, 2013) http://www.nytimes.com/interactive/2013/06/08/us/politics/08obama-surveillance-history-video.html

[4] Dave Gilson, Alex Park and AJ Vicens, “The Domestic Surveillance Boom, From Bush to Obama,” Mother Jones, June 7, 2013 (Retrieved June 17, 2013) http://www.motherjones.com/politics/2013/06/timeline-nsa-domestic-surveillance-bush-obama

[5] See, e.g., Sari Horwitz and William Branigin, “Eric Holder says he recused himself from leak probe that obtained AP phone records,” The Washington Post, May 14, 2013 (Retrieved July 6, 2013) http://articles.washingtonpost.com/2013-05-14/world/39248139_1_phone-records-justice-department-holder

[6] Sen. Charles Grassley Statement on DOJ’s Collection of Associated Press Phone Records, Main Justice, May 13, 2013 (Retrieved July 6, 2013) http://www.mainjustice.com/2013/05/13/sen-charles-grassley-statement-on-dojs-collection-of-associated-press-phone-records/

[7] Opening Remarks by Senator Ted Kennedy, “Project MKUltra,The CIA’s Program of Research in Behavioral Modification,” Joint Hearing before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Committee on Human Resources, United States Senate, Ninety-Fifth Congress, First Session, August 3, 1977, U.S. Government Printing Office, page 3 (copy hosted at The New York Times web site, retrieved June 20, 2013). http://www.nytimes.com/packages/pdf/national/13inmate_ProjectMKULTRA.pdf

[8] Jane Lawrence, “The Indian Health Service and the Sterilization of Native American Women,” (abstract from The American Indian Quarterly, Vol. 24, No. 3, Summer 2000) (Retrieved July 8, 2013) http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/american_indian_quarterly/v024/24.3lawrence.html

“1976: Government admits forced sterilization of Indian Women,” Native Voices page, National Library of Medicine web site (Accessed July 8, 2013) https://www.nlm.nih.gov/nativevoices/timeline/543.html

[9] “History of FOIA,” Transparency Project page, Electronic Frontier Foundation web site (Accessed July 6, 2013) https://www.eff.org/issues/transparency/history-of-foia

[10] The White House, President Barack Obama web site (Accessed June 18, 2013)  http://www.whitehouse.gov/open/

[11] “FDA Transparency Initiative,” U.S. Department of Health and Human Services, U.S. Food and Drug Administration web site, About FDA/Transparency page (Accessed June 29, 2013)  http://www.fda.gov/AboutFDA/Transparency/TransparencyInitiative/default.htm

[12] FDA Transparency Blog, U.S. Department of Health and Human Services, U.S. Food and Drug Administration web site (Accessed June 29, 2013) http://fdatransparencyblog.fda.gov/2008/11/

[13] Associated Press, “President Barack Obama defends top secret National Security Agency spying programs in Charlie Rose interview,” NYDaily News.com, June 18, 2013 (Retrieved July 6, 2013) http://www.nydailynews.com/news/politics/president-barack-obama-defended-top-secret-national-security-agency-spying-programs-charlie-rose-interview-article-1.1375507

Judges who serve on the Foreign Intelligence Surveillance Court created by the Foreign Intelligence Surveillance Act of 1978 (FISA) approve applications for surveillance warrants requested by federal law enforcement agencies (e.g., the Federal Bureau of Investigation  and the National Security Agency).

[14] Peter Baker and David E. Sanger, “Obama Calls Surveillance Programs Legal and Limited,” The New York Times, June 7, 2013 (Retrieved June 25, 2013) http://www.nytimes.com/2013/06/08/us/national-security-agency-surveillance.html

See also, “Obama authorizes five more years of warrantless wiretapping,” RT.com, December 31, 2012 (Retrieved June 25, 2013) (“President Obama reauthorized an intelligence gathering bill on Sunday that puts national security over constitutional rights.”) http://rt.com/usa/obama-fisa-faa-signed-143/

[15] “Obama authorizes five more years of warrantless wiretapping,” RT.com, December 31, 2012 (Retrieved June 25, 2013) http://rt.com/usa/obama-fisa-faa-signed-143/

See also, Jonathan Weisman, “Sounding the Alarm, but With a Muted Bell,” The New York Times, June 6, 2013 (Retrieved June 27, 2013) (“The intelligence community can target individuals who have no connection to terrorist organizations,” Mr. Udall warned back in May 2011. “They can collect business records on law-abiding Americans.”) (“ in 2012, Mr. Wyden offered an amendment that would have forced public disclosure of the impact of secret surveillance on the privacy of ordinary citizens. The amendment failed 43-52, with five senators not bothering to vote.”) http://www.nytimes.com/2013/06/07/us/politics/senators-wyden-and-udall-warned-about-surveillance.html

[16] Howard Berkes, “Amid Data Controversy, NSA Builds Its Biggest Data Farm,” NPR, June 10, 2013 (Retrieved July 6, 2013) http://www.npr.org/2013/06/10/190160772/amid-data-controversy-nsa-builds-its-biggest-data-farm

[17] “Privacy and Civil Liberties,” U.S. Department of Justice web site, Office of Justice Programs (Accessed July 6, 2013) https://it.ojp.gov/default.aspx?area=privacy&page=1279#contentTop

[18] Kevin Coupe, “The Clear And Utterly Unscientific Case For GMO Transparency,” (June 7, 2013) (Retrieved June 23, 2013) http://www.forbes.com/sites/kevincoupe/2013/06/07/the-clear-utterly-unscientific-case-for-gmo-transparency/ (italics in original).

[19] Andrew Martin, “Consumers Won’t Know What They’re Missing,” The New York Times, November 11, 2007 (Retrieved June 23, 2013). http://www.nytimes.com/2007/11/11/business/11feed.html

[20] Andrew Martin, “State Revises Hormone Label for Milk,” The New York Times, January 18, 2008 (Retrieved June 23, 2013). http://www.nytimes.com/2008/01/18/business/18milk.html?_r=0

[21] Andrea Rock, “The Lethal Dangers of the Billion-Dollar Vaccine Business,” CNNMoney, December 1, 1996 (Retrieved June 23, 2013) http://money.cnn.com/magazines/moneymag/moneymag_archive/1996/12/01/218857/

[22] Susan Berfield, “Whole Foods’ Business Case for GMO Labeling,” Bloomberg Businessweek, March 11, 2013 (Retrieved June 23, 2013) http://www.businessweek.com/articles/2013-03-11/whole-foods-business-case-for-gmo-labeling

[23] See the Transparency and Accountability Initiative web site (Accessed July 12, 2013) http://www.transparency-initiative.org/about/definitions

[24] “A reconstruction of terror,” The Boston Globe, April 27, 2013 (Retrieved July 11, 2013) http://www.boston.com/news/local/massachusetts/2013/04/27/bombreconstruct/fm7cz4gY8oVYEtM50cmlGN/singlepage.html

 

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