Secret Service

is a professor at Harvard Law School. Politics in the age of information is often about secrets: who has them, who can keep them, who must tell them to whom. Can the NSA listen to my phone conversations? Can the police find out what books I buy or what movies I rent? Can I find out whether they know those things? As that set of questions suggests, secrets tend to pit individuals against the state. In the United States today, the left usually lines up with individuals; the right (though not always, and not unanimously) lines up with the state. Privacy and transparency-- the twin concepts that government should know as little as possible about individual citizens, while those citizens should know as much as possible about the government--seem like quintessentially liberal ideas.But one might think about the politics of secret information very differently. In order to govern wisely, the government should know as much as possible about those it governs. And the citizenry should know a lot less about government officials--otherwise, those officials will spend too much time and energy hiding from reporters and too little time and energy governing. In these terms, individual privacy and government transparency are deeply conservative ideas, because they keep government ignorant and inactive, and thereby prevent it from acting aggressively to right social wrongs. That second view sounds upside-down--even crazy--but, until recently, it was the conventional wisdom. Fifty years ago, legally protected privacy barely existed. In most places, police officers searched when, where, and whom they wished, without fear of legal consequence. To a degree that would astonish Americans today, individual lives were as open--as transparent--as the windows in Alfred Hitchcock's 1954 hit movie Rear Window. Jimmy Stewart played a photographer who solves a murder while sitting in his apartment nursing a broken leg and spying on the people in the building next door--all of whom live their private lives next to open windows. Only the killer kept the lights out and the blinds drawn. Today, no one would buy the story, because everyone's blinds would be drawn. While individual lives were more transparent, government was much less so. Enlightened opinion favored secrecy, not openness. That is how Joe McCarthy was brought to heel: Dwight Eisenhower created a broad doctrine of executive privilege and used it to shut off McCarthy's information flow. Everyone but right-wing kooks thought Eisenhower got that one right. Robert Caro's book on Lyndon Johnson's Senate years describes '50s floor debates in which senators were actually trying to persuade one another, apparently without fear that the public was listening in--since it wasn't. Those scenes are unimaginable today. Floor debates are televised; anyone can hear them and anything interesting will prompt substantial news coverage. But no one says anything interesting. Funny coincidence, that. Secret government snooping sounds Orwellian. But Orwell guessed wrong about some things. Today, the danger that American democracy faces is not that rulers will know too much about those they rule, nor that too many decisions will be made without public scrutiny. Another danger looms larger: that effective, active government--government that innovates, that protects people who need protecting, that acts aggressively when action is needed--is dying. Privacy and transparency are the diseases. We need to find a vaccine, and soon. Begin with some history. James Madison placed both privacy and transparency (though neither term) in the Bill of Rights, where they mostly lay dormant until the Supreme Court resurrected them during the '60s. Before that, the relevant provisions of the Bill applied only to the federal government--and, for most of that time, the federal government didn't do much. In the midst of that long hibernation, each of these legal concepts had a brief but telling moment in the sun. Privacy's moment came in the late nineteenth century, when the Interstate Commerce and Sherman Acts seemed to herald the rise of federal regulation of big business. Privacy was code for laissez-faire constitutionalism, a legal club with which to beat back unwelcome economic regulation. For a time, the club worked. The Supreme Court concluded that ordinary subpoenas for financial records (regulating business without them is impossible) violated both the Fourth and Fifth Amendments because they interfered with "the privacies of life. " Leading scholars believed that this privacy right belonged as much to corporations as to individuals. Until the justices renounced such claims (the key decision came in 1906), a full-scale collision between conservative federal judges and progressive elected officials--the kind that actually happened in the '30s in response to Franklin Roosevelt's New Deal, though on different legal grounds--looked imminent. The collision was avoided only because privacy yielded to government power. Transparency's moment in the sun likewise flowed from pro-business conservatism. By 1946, FDR's political magic seemed to have died with him; that fall, Robert Taft's Republicans would score the party's biggest congressional victory between 1928 and 1994. During the run-up to the election, powered by the votes of conservative Republicans and ultra-conservative Southern Democrats, Congress passed the Administrative Procedure Act (APA). The APA was called an "administrative bill of rights"--in other words, a bill of rights for regulated businesses. Its goal was to rein in the executive agencies through which New Dealers regulated the economy, chiefly by making those agencies more open. Under the APA, agencies could no longer simply issue rules and regulations. Instead, they had to provide public notice of all proposed rules and give regulated businesses a chance to respond before the rules took effect. Businesses could appeal unfavorable regulatory decisions to then-friendlier federal judges. The winners were those who didn't want government agencies to do much governing. That was no mere coincidence. Conservatives embraced privacy and transparency because they were inherently conservative ideas. The right to keep information private helps those who own the most information, and those who own information tend to own other things as well. Current Fourth Amendment law captures this point depressingly well. The law protects "reasonable"--meaning ordinary--privacy expectations. Poor people live less-than-ordinarily-private lives. The poor tend to live in apartments rather than detached houses, spend more of their lives in public spaces than in private ones (because their homes and workplaces tend to be small and unpleasant), and travel more by bus or subway than by car. By contrast, the lives of the wealthy are lived in spacious houses, offices, and cars. Like a tax code that charges the highest rates to those who make the least money, Fourth Amendment law protects houses more than apartments, private spaces more than public ones, and passengers in cars more than those who ride buses and subways. Transparency also acts like a tax--a tax on activist government. Anyone who has worked in a large institution understands why. For every good idea about how the institution might run better, employees generate ten bad ones. So the key to producing good ideas is encouraging ideas of all sorts. And the key means of encouragement is secrecy. Transparency, by contrast, is the ultimate status-quo rule: It punishes all suggested deviations from the norm. No wonder pro-business conservatives of the '40s liked it so much. How did these conservative ideas come to be embraced by the political left? With respect to transparency, the story is simple. Vietnam and Watergate made the left suspicious of government power generally and executive power in particular. When liberals looked for a way to make Richard Nixon's imperial presidency a little less imperial, they stumbled on weaponry that Taft's Republicans had used against Harry Truman: force the president to disclose as much as possible, as often as possible. It was an odd historical moment, a time when making government smaller and less active seemed a reasonable goal for the left. (A young Jerry Brown, then governor of California, made a name for himself by telling the world that "small is beautiful.") A quarter-century later, the world turned around again, as the right used the same weapon against Bill Clinton. In one sense, it backfired: Voters disliked the Lewinsky investigation and punished Republicans for it. But, while the right lost the battle, it won the war. Today and for the foreseeable future, presidents' personal relationships are open to press and public scrutiny. Which makes it harder for creative, energetic presidents to get things done. Privacy, once the right's favorite right, became the left's friend thanks to the civil rights movement. In a time when J. Edgar Hoover was spying on Martin Luther King Jr. and Southern sheriffs were enforcing America's own version of apartheid, police snooping had a decidedly right-wing cast. When a liberal Supreme Court decided the time had come to rein in out-of-control cops, the justices used the legal tools that seemed best suited for that job: the Fourth Amendment's ban on unreasonable searches and the Fifth Amendment's prohibition of compelled self-incrimination. Constitutional texts designed by rich slaveholders in the late eighteenth century--texts used by rich corporations to protect laissez-faire economics in the late nineteenth century--became, in the late twentieth century, the chief means of protecting black suspects from abusive white cops. There was only one problem: It didn't work. To see why, you need to think like a police chief deciding where to put your officers. For violent felonies and thefts, the decision is easy: Go where the crimes are. Drug crimes are different--there are no immediate victims, no 911 calls. The police must decide where to look for them. And, since drugs are omnipresent, where the police look determines whom they catch. Fourth Amendment law makes it more expensive to look in middle- and upper- class neighborhoods. Upscale drug transactions take place indoors, with individually arranged meetings in different locations. Markets like that are hard for the police to penetrate. Privacy-based search and seizure rules like the Fourth Amendment's probable cause and warrant requirements make the job substantially harder. Open-air drug markets in poor neighborhoods are a piece of cake by comparison. Roll up, do the buy-and-bust, and go back to the station. No need to worry about privacy rules, since everything is out in the open. Inner-city drug policing is often violent and nearly always humiliating to the targets of police attention, the vast majority of whom are innocent. (The nypd arrests only one of every nine suspects its officers stop and frisk.) But the harms are not chiefly to privacy. So they don't count. We seem to have created the perfect system for policing the police--if the system's goals are to maximize protection for rich white kids from the suburbs and maximize police authority over poor black kids from central cities. The results are predictable. As recently as 1980, just under half of all felony defendants were poor enough to receive a court-appointed lawyer. By 1992, the figure was 80 percent. According to the federal government's own data, white crack users outnumber black ones, but black crack defendants outnumber their white counterparts by twelve to one. The Fourth Amendment bears some responsibility for that sad reality. Not all responsibility, of course: Even the best imaginable search and seizure rules would leave police tempted to make too many drug arrests in poor areas and too few in rich ones. Still, instead of fighting that tendency, privacy-based search and seizure law reinforces it. In law as in medicine, that violates the cardinal rule of sound practice: First, do no harm. That's not all. Most legal rights help the innocent and guilty alike, but they help the innocent more. Giving lawyers to all criminal defendants raises the odds of acquittal across the board, but the odds rise most for defendants who committed no crimes--because it will be easier for their lawyers to find evidence that exonerates them. A tougher burden of proof--beyond a reasonable doubt instead of more-likely-than-not--helps all criminal defendants, but it helps the innocent most, since it's easier to prove true propositions than false ones. The same is true of the requirement of unanimous jury votes to convict, the right to confront the government's witnesses, the right to appeal, and the list goes on. But the point doesn't hold true for, say, limits on house searches or mandatory Miranda warnings as a prelude to police questioning. Those rules make it harder to gather evidence. That helps those against whom the evidence would be used. Innocent and guilty alike may enjoy the pleasure of knowing that the government isn't monitoring their phone calls. Only the guilty enjoy the added pleasure of knowing they won't be booking passage to the local penitentiary just yet. Plus, in this context, anything that helps the guilty harms the innocent. Thanks to the rise of DNA testing, we are beginning to learn how many innocent men and women live in prison cells. The number is appallingly high. Some of them live in those cells because the police never learned who committed the crimes for which they were wrongly punished. Limits on evidence-gathering force courts to make decisions based on something less than the best evidence. That means less accurate trials. Some guilty criminals go unpunished. Worse, some innocent defendants are punished in their stead. Privacy's price is steep, and the bill is paid by society's most vulnerable members. Now add terrorism to the mix, and remember that different forms of evidence- gathering are substitutes for one another. Anything that raises the cost of one lowers the cost of all others. The harder it is to tap our phones, the more government officials will seek out alternative means of getting information: greater use of informants and spies, or perhaps more Jose Padilla-style military detentions with long-term interrogation about which no court ever hears, or possibly some CIA "black ops," with suspected terrorists grabbed from their homes and handed over to the intelligence services of countries with fewer qualms about abusive questioning. In an age of terrorism, privacy rules are not simply unaffordable. They are perverse. Transparent government may be perverse, too. Consider the recently disclosed tape in which Governor Kathleen Blanco, fema Director Michael Brown, and various other state and federal officials discussed the response to Hurricane Katrina just hours after the storm made landfall. As the conversation happened, the situation was spiraling out of control. But the participants spent most of their energy congratulating one another (and themselves) and repeatedly saying that they stood ready to do anything that needed doing--while not actually doing anything. It was as if everyone in the videoconference expected the tape to be on the evening news. Behavior like that would get you fired in the corporate world. But government officials have different incentives. Suppose you work in an agency that monitors security in the nation's airports. You have an idea, a way to make airports safer. What should you do? The answer seems easy: push the idea, try to get higher-ups to take it seriously. But that course of action carries serious costs. Higher-ups in government agencies tend to like things the way they are--innovation is politically risky; those who have a stake in the existing system may cause trouble. Meanwhile, even if the benefits of your new idea are substantial, neither you nor your bosses internalize them. Government agencies aren't like profitmaximizing businesses: They don't make money off of new ideas. And if the idea works--terrorists who could have attacked some airport now can't, because security is better--odds are, no one will know, because we rarely find out about events that might have happened but didn't. Ideas have price tags; the price is often high and always visible. Benefits may be high, too, but they're usually invisible. Keeping your head down and your mouth shut tends to be the smart move. That scenario illustrates a basic truth about government: For most officials most of the time, the key choice is not between doing right and doing wrong, but between doing something and doing nothing. Doing nothing is usually easier-- less likely to generate bad headlines or critical blog posts. Publicity raises the cost of doing something. That makes inaction more attractive, and it is plenty attractive already. Taft's Republicans had it right: A transparent regulatory state regulates little. Roosevelt's New Dealers had it right, too: Opacity is essential to a government that moves, acts, makes things happen. And there is a larger problem. Transparency makes politics a running argument about decision-making, not about decisions. A few years back, Washington spent more time discussing which lobbyists were in the room when Dick Cheney crafted energy policy than actually debating energy policy. That perfectly captures the politics of transparency: The key questions are always who knew what and when, who was in the loop and who was left out. The merits disappear, drowned in a sea of procedural detail. Nowhere is the focus on government process more destructive than in the work of counterterrorism. Law enforcement is a game of cat and mouse. The government makes its move, criminals respond, government adapts, and the game goes on. Thankfully, most criminals are not too bright, so the game is easily won. Terrorists are different; the most dangerous ones are smart and well-motivated. Whatever information they have, they will use. There is something deeply crazy about publicly debating what law-enforcement tactics the government should use to catch people who are happily listening to the debate and planning their next moves. A difficult governance problem lurks in the shadows here. On the one hand, it is clear that free people will not remain so if government officials can do whatever they want--which is why someone, somewhere must place limits on what the government can do. But transparency throws out the baby with the bathwater. We avoid bad government ideas by punishing all ideas, and we tell our enemies exactly how they can best evade our efforts to catch them. There must be a better way. There is. Actually, there are several. The kinds of privacy people value most can be protected without disabling the government from gathering information. And, though transparency is a harder nut to crack, we can have a large measure of government secrecy without disabling key checks on the tendency of rulers to oppress those they rule. Privacy first. Every year, tens of millions of Americans fill out their tax returns, giving the IRS a tremendous amount of information about their finances. The affront to privacy mostly goes unnoticed. Why? Because anonymity matters more than privacy. Two key propositions follow. First, the more people whose lives the government invades, the better. When targets are few, anonymity disappears. If there were 100 tax forms filed instead of 100 million, the IRS might do more snooping than is healthy. The more phones are tapped, the less freedom is threatened. Second, the initial invasion of privacy isn't the problem; subsequent disclosure is. The true image of privacy intrusion is not some NSA bureaucrat listening in on phone calls, but rather Kenneth Starr's leaky grand jury investigation, which splashed a young woman's social life across America's newspapers and TV screens. That is the nightmare worth protecting against. The best way to stop the nightmare from happening is to limit not what information officials can gather, but what they can do with the information they find. Leaks and press conferences are much bigger risks to privacy than wiretaps and satellite feeds. I have mixed feelings about the Valerie Plame affair, but one aspect of Patrick Fitzgerald's investigation is salutary: It reinforces the idea that government officials are obliged not to trumpet secret information. That idea has more to do with genuine privacy protection than anything in Fourth Amendment law. Another limit matters still more, and it is one we have lost over the last generation or two. U.S. criminal law once covered fairly serious crimes and not much else. There were, to be sure, busybody laws against minor vices and allegedly deviant sex acts. But, for the most part, the government couldn't send you to prison unless it proved you had done something that you clearly shouldn't have done. Not anymore. American criminal codes have metastasized. That may be why so many people find privacy rights so attractive: Giving the government information seems dangerous, since there are so many ways government can use information to punish ordinary citizens. But this gets causation backward. Legal codes are too broad in part because information is too hard to get. The courts make gathering evidence more difficult, so legislatures give police and prosecutors tougher laws to use against those they investigate-- another kind of cat-and-mouse game. Better to end the game and make the following deal: The government can find out what it wants about me, but it can't call the local paper and turn over the juicy parts, and it can't prosecute me unless I've done something that was clearly wrong and harmful. I'd have more freedom under that deal than I enjoy now. Transparency is a tougher problem. How can we restrain agencies like the NSA that make decisions and carry out investigations in secret? Two responses are key. First, require limited disclosure: say, to the key congressional committees and to any courts designed to supervise the relevant process. Second and more importantly, as decision-making procedure becomes less transparent, bottom lines should become more so. Today, the pros and cons of different surveillance plans are debated in the press. But, when the government arrests and prosecutes terrorists, it does so under the table, charging immigration fraud or some other small-potatoes crime and hiding the real reasons for punishment. Consequently, no one knows how many terrorists the government has caught or what has become of them. Sometimes--campaign finance is a good example-- transparent procedure is valuable. As the rise and fall of Jack Abramoff illustrates, money often passes invisibly from lobbyists to politicians, with adverse consequences for democracy. Corruption aside, though, voters are generally better at judging bottom lines than at assessing government procedures. Twenty-first-century U.S. law and politics too often make bottom lines invisible, while leaving procedures open to public view. That may explain why our politics are both nastier and less productive than at any time in living memory. Conservatives and liberals should be able to agree on these propositions. Getting privacy and transparency right is the key to making government work better. Conservatives should like that because, at least for now, they run the government. Liberals should want government to function better because they believe in it. America's greatest triumphs--fighting and winning the Civil War, battling the Great Depression, defeating first fascism and then communism, winning civil rights for African Americans--all happened because government worked. Today, it usually doesn't. The reasons sound surprising, but they would have made sense to Americans of generations past: We have too much privacy, and those who govern us have too little.

By william j. stuntz