Mark Fenster

The Transparency Fix

Secrets, Leaks, and Uncontrollable Government Information

• Broschiertes Buch

Produktbeschreibung

Mark Fenster is the Cone, Wagner, Nugent, Hazouri & Roth Tort Professor at the Levin College of Law, University of Florida. He is the author of Conspiracy Theories: Secrecy and Power in American Culture (1999, 2008).

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Produktdetails

• Verlag: Stanford University Press
• Seitenzahl: 296
• Erscheinungstermin: 11. Juli 2017
• Englisch
• Abmessung: 229mm x 152mm x 17mm
• Gewicht: 440g
• ISBN-13: 9781503602663
• ISBN-10: 1503602664
• Artikelnr.: 47279373

Autorenporträt

Mark Fenster is the Cone, Wagner, Nugent, Hazouri & Roth Tort Professor at the Levin College of Law, University of Florida. He is the author of Conspiracy Theories: Secrecy and Power in American Culture (1999, 2008).

Inhaltsangabe

Contents and Abstracts
Introduction: The Transparent State We Want But Can't Have
chapter abstract
This chapter introduces the book's arguments: Transparency and secrecy
share a cybernetic theory of information transmission by which the state
can control its information (in order either to release or secure it); the
state's information is identifiable and capable of being released or
secured; and a public or other receiver awaits the information's release
and will respond to it rationally and predictably. This theory permeates
advocacy, laws, and popular ways of understanding the state and its
information. But the theory does not describe the contemporary state, which
is both too secret and too leaky.
1Liberating the Family Jewels: "Free" Information and "Open" Government in
the Post-War Legal Imaginary
chapter abstract
This chapter presents the history of early transparency advocacy and its
relationship to prevalent theories of democracy. The concepts of "freedom
of information" and the "right to know" carry the weight of the
transparency advocacy movement. The concepts assumed their current meanings
in the post-World War II campaign to fight against government secrecy, a
campaign that established certain means of understanding the state,
information, and the press that remain key elements of access to
information law today-means that relied upon broader theoretical
justifications developed in modern political theory. In their development
and deployment, the two concepts reveal transparency's symbolic meaning, as
well as its emphasis on the state as an entity defined by its information.
2Supplementing the Transparency Fix: Innovations in the Wake of Law's
Inadequacies
chapter abstract
FOIA has not fully solved the problem of government secrecy. Advocates'
disappointment and frustration with the legal fix for government secrecy
have spawned innovative transparency campaigns that seek a better, more
effective means to unveil the state than legal rights. This chapter
describes three of them: Transparency International and other
anti-corruption NGOs; advocacy for digital transparency via the use of
information technology to open government data and make a more responsive
state; and WikiLeaks and the vigilante transparency movement it has helped
usher in. The movements share a commitment to freeing government
information but have different visions of the state and the best policies
to make it transparent. The chapter demonstrates that the nearly universal
embrace of transparency as a normative good masks irreconcilable
substantive disagreements over what the newly visible state should look
like.
3Transparency's Limits: Balancing the Open and Secret State
chapter abstract
This chapter considers the philosophical and practical critiques of
transparency and the justifications for secrecy that support a broad
privilege for government to keep secrets. The longstanding, widely accepted
notion that transparency must have limits and that state secrecy is
essential for the state's functions has led to a body of law and group of
norms that enable and even encourage the state to control information. The
imperfect resolution to the conflict between secrecy and transparency
follows from the contested boundaries between transparency's reach and
secrecy's limits. This unresolvable contest in turn drives the chase for an
elusive balance between disclosure and privilege, one that can produce both
a vibrant democracy with an informed electorate as well as a secure nation
and functional state.
4The Uncontrollable State
chapter abstract
This chapter considers the state as a set of logically but loosely
organized bureaucratic institutions that occupy vast geographic and
physical space. The contemporary state's size and complexity resist the
kind of informational controls that transparency and secrecy require as
administrative ideals. These ideals presume the existence of a singular
entity capable of communication, understood as sending the message of
government information to a receiver or preventing itself from doing so by
choosing to be uncommunicative. But the state cannot serve as the producer
and repository of information that controls information's flow and acts as
a unified, intentional communicator. It sprawls too much geographically and
organizationally to perfectly send, or keep itself from sending, its
information as a message.
5The Impossible Archive of Government Information
chapter abstract
This chapter considers how the state's complex and contextual process of
producing and holding information undermines the notion that the government
information that is disclosed or kept secret can serve as a message worthy
of transmission or suppression. "Government information" exists, of course,
but only as a hypothetical ideal. It makes up a boundless archive that
cannot be known. Most importantly, the archive cannot be fully disclosed or
kept fully secret. The chapter illustrates this by discussing the
difficulties created by the problem of conceptualizing and therefore
controlling the government document, the sheer size of the government's
archives, and the effects that the effort to keep information secret and to
force its disclosure have on information's production and circulation in
the bureaucratic state.
6Disclosure's Effects?
chapter abstract
This chapter considers whether the disclosure of government information has
effects by asking three questions: First, is the public capable of
responding rationally and knowledgeably to disclosure? Second, does the
public even exist in some discernible form? These two questions pose the
core challenge to transparency and secrecy. The academic literature across
multiple disciplines challenges not only the assumption that the public is
capable of understanding state information but also that some public even
exists in an identifiable form. The third question is whether institutions
of various sorts-those state and private organizations that serve on the
public's behalf or might undermine the nation's security and
well-being-have the capacity to respond to disclosure in rational and
predictable ways. To assume that these institutions can do so assumes that
they too have the capacity to understand and respond rationally to
government information-assumptions that rest on a shaky foundation.
7The Implausibility of Information Control
chapter abstract
Secrecy is exceedingly difficult to maintain. This chapter offers three
case studies that illustrate the various means by which information seeps
out of the state, including deliberate leaks by officials and accidental
leaks that occur by bureaucratic mistake, observation and reporting by
people outside the government who witness state action, and the act itself
of keeping secrets, which can disclose information about government plans
and actions. One case study chronicles Vice President Cheney's surprisingly
unsuccessful efforts to keep the National Energy Policy Development Group
(NEPDG) secret; another describes several instances in which redaction has
not kept secret the information it covers and shows how redaction fails to
completely stop interpretation and knowledge while it generates imaginative
means to gather information and interpret the absent content; and the third
discusses the difficulty that the government faces in controlling even its
most prized secrets about covert operations.
8The Disappointments of Megaleaks
chapter abstract
The unauthorized release of massive numbers of classified or secret
government documents offers an opportunity to test disclosure's effects. If
transparency matters, then Edward Snowden and WikiLeaks' revelation of huge
caches of documents should enable the public to learn more and engage more
knowledgeably with the issues the documents raise, increasing public
accountability with more enlightened political debate and participatory
democracy. But if disclosure proves harmful and secrecy is essential, then
the leak of these materials should significantly increase the nation's
vulnerability in discernible ways and harm its relationships
internationally. Reviewing open source materials, this chapter concludes
that there is no clear or meaningful pattern of effects that WikiLeaks and
Edward Snowden caused. This finding does not support the claims that
advocates make about disclosure's necessity or its danger, and it casts
doubts on legal standards that ask judges or officials to balance the
benefits and risks of disclosure.
Conclusion: The West Wing, the West Wing, and Abandoning the Informational
Fix
chapter abstract
This brief concluding chapter discusses two things: how the TV series The
West Wing demonstrates our ambivalence about secrecy and transparency by
giving full access to a transparently fictional White House whose officials
debated why they kept secrets; and why seeking to tinker with government
institutions and transparency mandates will ultimately be more successful
than imagining government information can be fixed.