by Russell L. WEAVER, Professor of Law & Distinguished University Scholar, University of Louisville, Louis D. Brandeis School of Law (USA).
Governmental
openness and transparency are indispensable elements of modern democratic
societies. Of course, during the medieval period, when monarchy was the
dominant form of government in Europe, and some monarchies claimed to exercise
power based on “Divine Right”[1]
– suggesting that kings were placed on their thrones by God, were divinely
inspired and guided, and were carrying out God’s will through their actions[2]
– concepts like openness, transparency, free speech and democratic
accountability had no function. After all, why would society allow common
people to criticize what God has done, or allow them to rebuke the monarch for carrying
out God’s choices and actions? However, with the dawn of the Enlightenment, an
entirely new understanding of government and governmental authority began to
emerge. In the United States, this new understanding was reflected in the U.S.
Declaration of Independence[3]
which implicitly rejected the concept of Divine Right, and declared the primacy
of democratic principles: “Governments are instituted among Men, deriving their
just powers from the consent of the governed.”[4]
As
democratic governance gained ascendance in Western societies, it is now
understood that the concept of the “consent of the governed” contains two
essential elements. First, a free and democratic society must be premised on
the right to freedom of expression.[5]
If the citizenry is free to decide who they will vote for, and which ideas or
propositions to support and promote, they must be free to communicate their
ideas with each other, and to attempt to persuade others to their positions.[6]
Second, the people must have access to information regarding the functioning of
government. It is difficult to have meaningful democratic participation, or
democratic accountability, when the government conceals information from the
public, and starves the public of information regarding its functioning.[7]
In recent
decades, various factors have led to dramatic improvements in the scope of
governmental transparency. First, some improvements are attributable to
attitudinal differences towards transparency. At one point in history, many
governments did not feel obligated to be transparent or open with their
citizens. For the U.S., that situation began to change when Congress’ adopted
the Freedom of Information Act (FOIA). FOIA gave citizens the right to access
governmental documents subject to certain exceptions. FOIA was followed by other
open government legislation. Second, efforts at transparency have also been
aided by rapid advances in communications technology.[8]
In earlier
times, mass communication was difficult and slow because books and documents
had to be laboriously prepared by hand, and could not be quickly created or
reproduced.[9]
With Johannes Gutenberg’s invention of the printing press in the fifteenth
century, communications possibilities were radically transformed,[10]
enabling the production and dissemination of multiple copies that directly
affected the world of ideas.”[11]
Centuries later, the development of the Internet has had a similar impact on
communications possibilities,[12]
and has dramatically transformed the possibilities for open government and
transparency as discussed more fully below.
Although
the Internet comes with great transparency advantages, it also comes with a
significant downside as to which there is a lack of transparency: the U.S.
government has been collecting large amounts of cyberdata.[13]
In the digital age, government has the ability to collect enormous amounts of
information regarding the citizenry, and it is not clear that citizens are
sufficiently informed of governmental efforts so that they are able to
effectively exercise their democratic oversight function. These collection
efforts create the possibility for governmental abuse.
This short
article does several things. First, it discusses the development of openness
and transparency principles in the United States, particularly in regard to
freedom of information. Second, it examines how the Internet has helped expand
transparency and enhance the ability of ordinary citizens to participate in
governmental oversight and the democratic process. Finally, the article
examines how modern technologies have created potential complications for
individual privacy, often without transparency for affected individuals.
The U.S.
government is far more open and transparent than it was a century ago. Prior to
the 1930s, both the federal government and state governments conducted
governmental business with only a modicum of transparency. For example, prior
to the 1930s, administrative agencies were not required to publish proposed
rules or regulations, much less their policy positions and choices.[14]
Commonly, agencies would simply announce and implement their regulatory wishes.
In addition, although the U.S. Constitution requires that “Ambassadors, other
public Ministers and Consuls, Judges of the Supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise
provided for,” be confirmed only with the “advice and consent” of the U.S.
Senate,[15]
for much of U.S. history these confirmation hearings were closed to the public.[16]
The U.S.
government started moving towards greater openness and transparency in the
early part of the twentieth century. The movement began with the U.S. Senate’s
processes for considering nominations to the U.S. Supreme Court. For decades,
despite the importance of the U.S. Supreme Court, there was little transparency
regarding confirmation hearings. On the contrary, confirmation hearings were
generally closed to the public. Then, about a hundred years ago, the U.S.
Senate broke with tradition and held confirmation hearings in public.[17]
The results of that openness have been interesting and enlightening. Although a
number of confirmation hearings had been contentious prior to the twentieth
century, the public became much more interested and much more involved once the
proceedings became public.[18]
As the public began to realize that judicial views affect the outcome of cases,
the public began to galvanize both for and against proposed nominees.[19]
As a result, when Robert Bork was nominated to the U.S. Supreme Court,[20]
public scrutiny of his nomination was intense, focusing on his views on such
hot-button issues as abortion and privacy.[21]
Interest groups actively opposed his nomination,[22]
expressing concerns regarding Bork’s positions on civil rights,[23]
and abortion.[24]
Indeed, even prior to his nomination, interest groups had anticipated the
nomination and had begun researching his record.[25]
Attempts to
influence Senate confirmation proceedings have now become commonplace. As a
result, when an individual is nominated to the judiciary, interest groups
opposed to the nomination immediately mobilize in an effort to thwart the
nomination.[26]
These groups use a variety of tactics, including researching nominees’
positions, lobbying Senators, providing information to the media, arranging
television advertising campaigns, sending opposition mailings, and organizing
constituent letters and phone calls.[27] The Clarence Thomas confirmation hearings
provide a good example. When he was nominated to the U.S. Supreme Court, there
were questions regarding whether he had sexually harassed a former subordinate
employee at the Equal Employment Opportunity Commission, and the confirmation
process involved lengthy public hearings.[28]
Despite considerable testimony against Thomas, most senators ultimately decided
to give Thomas the benefit of the doubt.[29]
The next
major step towards openness and transparency occurred when the U.S. Congress
adopted the first major piece of “open government” legislation, the federal
Administrative Procedure Act (APA),[30]
in the 1930s. With the adoption of that act, agencies were no longer free to
unilaterally adopt regulatory changes without consulting the public or
regulated entities.[31]
The APA established two different types of procedures for creating rules:
“formal” processes and “informal” processes.[32]
The APA required that formal rules, also known as “adjudicative rules,” must be
created by “trial-type” procedures, involving subpoenas, offers of proof, etc.[33]
Although formal procedures continue to exist, very few agencies use those
processes because they are too difficult and too cumbersome. Most U.S.
administrative agencies create virtually all rules and regulations using
so-called informal procedures which require agencies to begin the promulgation
process by publishing a NOPR (notice of proposed rulemaking) in the Federal Register,[34]
thereby providing the public with notice of the proposed rule.[35]
The NOPR must contain various types of information, including “(1) a statement
of the time, place, and nature of public rule making proceedings; (2) reference
to the legal authority under which the rule is proposed; and (3) either the
terms or substance of the proposed rule or a description of the subjects and
issues involved.”[36] In addition to allowing interested parties
the opportunity to comment on NOPRs,[37]
and requiring agencies to “consider” those comments,[38]
the APA also requires agencies to issue a “concise general statement” of the
“basis and purpose” of any final rule that they issue.[39]
However, the APA exempts various types of information from its rulemaking
processes.[40]
As with the U.S. Supreme Court’s confirmation processes, adoption of the APA’s
rulemaking procedures have led to greater citizen involvement. When
administrative agencies propose a new rule or regulation, it is not at all
uncommon for affected individuals and entities to offer comments, and sometimes
to offer changes or amendments. In some instances, regulated entities mobilize
(much as they do in response to U.S. Supreme Court nominations), and present
detailed arguments both for and against proposed regulatory changes.[41]
The APA
also promoted openness because it required administrative agencies to
voluntarily disclose various types of internal information to the public,
including “interpretative rules and statements of policy.”[42] However, even though the APA was beneficial,
in that it was designed to require agencies to voluntarily disclose information
to the public, the disclosure obligations were limited to certain types of
information (e.g., certain documents related to rulemakings, interpretations
and policy statements), but did not create a general right of access to agency
documents.[43]
Moreover, the obligation to publish interpretative rules and statements of
policy has been frequently ignored by administrative agencies without
consequence,[44]
even though FOIA purports to sanctions agencies that fail to satisfy their
disclosure obligations.
Congress
has also promulgated other legislation designed to promote openness and
transparency. For example, in the 1960s, Congress enacted the Freedom of
Information Act (FOIA),[45]
which gives individuals and corporations a right of access to information held
by the U.S. government. FOIA is a “disclosure” statute because Congress assumed
that government would disclose rather than conceal documents.[46]
FOIA specifically states that “upon any request for records which reasonably
describes such records and is made in accordance with published rules stating
the time, place, fees (if any), and procedures to be followed, shall make the
records promptly available to any person.”[47] Agencies are required to decide within twenty
days whether to comply with a request.[48]
However, the time limit can be tolled if the agency requests additional
information, or as necessary to clarify the applicability of fees.[49]
If the agency fails to comply with the applicable time limits, it cannot
require the requesting party to pay search fees absent “unusual or exceptional
circumstances.”[50]
Although
FOIA is a disclosure statute, it does not require disclosure of all governmental documents. Indeed,
despite the assumption of disclosure, FOIA explicitly allows administrative
agencies to withhold various types of information from disclosure, including
classified information, internal agency rules and practices, information specifically
exempted from disclosure by statute; private commercial or trade-secret
information, inter-agency or intra-agency privileged communications, personnel,
medical, or similar files the disclosure of which would constitute a clearly
unwarranted invasion of privacy; information compiled for law enforcement
purposes, information related to reports for or by an agency involved in
regulating financial institutions, and geological information concerning wells.[51]
In addition
to the APA and FOIA, Congress has also enacted the Federal Advisory Committee
Act (FACA),[52]
the Government in the Sunshine Act,[53]
and amendments to FOIA,[54]
all of which were designed to enhance governmental openness and transparency.
In addition, many state legislatures have adopted their own open records
provisions that are similar to FOIA.[55]
The
Internet, which has revolutionized communication,[56]
has also had a major impact on governmental openness and transparency. At one
point, it was relatively difficult for ordinary individuals to obtain
information from the government, as well as to have the ability to analyze that
information.[57]
In the environmental area, for example, this work was done largely by large
organizations who could afford to hire large staffs that could seek information
from the government, and who had the technical ability to analyze that
information.[58]
With the advent of the Internet, ordinary people are able to get involved in
the process. Professor William Gilles, a strong advocate for the idea of
“sousveillance” – the idea that individual members of society can observe
governmental actors and try to influence their actions[59] –
has noted the “increasing tendency of the citizenry to watch, gaze, look and
monitor, from the bottom, the practices of their governments, or even more
widely, everyone’s action thanks to the democratization of ICT tools.”[60] In the modern era, sousveillance has become a
reality. As one commentator noted, “Today, one environmental advocate with a
56k modem and a $20 per month Internet account has more power to acquire
information, to communicate, and to participate than a whole staff of people
did ten years ago.”[61]
If one
examines the environmental area, one can readily see that governmental
processes are more open and transparent today than at any point in the past.
There are a number of websites, including governmental websites, that allow the
public to access environmental information.[62]
For example, the United States Environmental Protection Agency (EPA) maintains
a website entitled “Envirofacts”[63]
that is designed to provide “multiyear information about a variety of sources
of pollution: stationary sources of air pollution; large-quantity generators of
hazardous wastes; treatment, storage and disposal facilities; Superfund sites;
facilities required to develop Risk Management Plans under the Clean Air Act;
facilities that submit Toxic Release Inventory reports characterizing
multimedia releases of toxic chemicals; and facilities required to report
wastewater discharges pursuant to the Permit Compliance System.”[64]
Some analysts tout Envirofacts as “one of the best
sources of environmental information on the Internet” because it is available
in multiple formats, is easy to use in that it can be accessed though a
“fill-in-the-blank” form, and “almost all of the information on the site is
derived directly from industry self-reporting to the U.S. EPA and/or its state
counterparts, pursuant to mandates imposed by law.”[65]
Today,
private websites compliment governmental websites as a method for disseminating
environmental information, including information obtained from the government.
For example, the Right-To-Know Network[66]
“offers information from government files about chemical accidents and
unpermitted releases, chemical testing and federal civil enforcement action,
and also includes other information (e.g.,
census, environmental, and mapping information).”[67] In addition, Environmental Defense maintains
the Scorecard,[68]
a website that publishes information in an effort to “encourage and sustain
activism.” Scorecard focuses on matters “like lead poisoning and runoff from
animal lots,” and includes “a report card ranking system by which states (and
in most cases, smaller geographic areas) and facilities are contrasted with
each other.” Another website is maintained by the Natural Resources Defense
Council’s (NRDC) which posts information on its website[69]
related to the EPA’s Cumulative Exposure Project (CEP).[70]
There are other similar websites.[71]
These
websites are complimented by governmental and private websites that provide
individuals with the scientific and technical information needed to evaluate
the technical environmental information that they find on the EPA website or
other sites.[72]
For example, the U.S. EPA’s Office of Air Quality, Planning and Standards
maintains the Technology Transfer Network,[73] a
“clearinghouse of the scientific and engineering information used to generate
EPA’s multiple Clean Air Act activities.”[74] The website includes the Maximum Achievable
Control Technology (MACT), which contains emissions and pollution control
information reported by industry sector, and the Ozone Transport Assessment
Group, which documents “nitrogen oxide (NO) transportation across the eastern
United States.”[75] Of course, individuals can also use search
engine directories such as the Google Web Directory which “offers numerous
subcategories of websites under ‘environment,’ including ten sites on
environmental ethics, seventy-six sites on forests and rainforests, and 385
sites on biodiversity.”[76]
In addition
to being able to find technical and scientific information on the Internet,
individuals can also access governmental and private sources that help them
analyze data from a legal perspective. For example, individuals can access
legal information through sites such as “Findlaw” and
the Government Printing Office’s “GPO Access.”[77] Findlaw[78]
“provides a wide array of useful legal documents and links to legal resources
for environmental advocates,” including the United States Code, the Code of
Federal Regulations and Federal Register
notices, as well as statutes and administrative codes for many states, and some
U.S. Supreme Court opinions and lower court information and opinions.[79] “Findlaw also provides links to websites for nonprofit legal
groups and information regarding the U.S. House of Representatives, Senate, and
Council on Environmental Quality.”[80] GPO Access[81]
provides many of the same documents available on Findlaw,
including a collection of earlier U.S. Supreme Court opinions, as well as
“congressional bills and hearing reports, House and Senate reports and Congressional Records.”[82]
The
Internet has also enabled the citizenry to more easily participate in
governmental permitting, rulemaking, and legislative decisions. For one thing,
individuals can use the Internet to obtain information regarding the existence
of ongoing administrative proceedings. For example, the EPA’s rulemaking
process can be accessed through the web.[83]
On a local level, many states and regional EPAs now place online draft permits,
public notices, final permits, summary documents, and point-of-contact
information online.[84]
For example, in Illinois, air permits are posted on a single website.[85]
Individuals can also submit comments online.
The
Internet also offers public interest advocates a new way to communicate with
one another, organize political constituencies, and thereby attempt to
influence governmental action. For example, the Clean Air Network (CAN) is a
Washington-based organization that tries to build coalitions among a wide range
of groups from across the country in an effort to promote clean air.[86]
The Internet has also enabled the media to advocate for governmental responses
to climate change.[87]
For example, one blog on the New York Times website advocates in favor of
climate change theory,[88]
and another blog discusses ways that ordinary people can combat the change.[89]
The evidence suggests that some of these blogs have broad readership,[90]
including governmental policymakers who seem to be aware of what is being
written in blogs.[91]
For example, governmental policymakers have critiqued information contained in
blogs (even though those policymakers might not have been altered or shifted by
the blogs).[92]
Despite the
advances towards openness and transparency that have occurred in the U.S., the
ability of Americans to participate in the democratic process nonetheless
suffers from a significant lack of transparency. There are many different
problems.
Regarding
FOIA, many agencies do not fully and completely comply with FOIA’s
requirements,[93]
do not create indices of their adjudicatory decisions,[94]
do not comply with FOIA’s production deadlines,[95]
and suffer from “substantial FOI request backlogs that preclude timely
determinations.”[96] These shortcomings make it difficult for the
public to find and obtain the documents that they seek. Agencies have
difficulties complying because of a lack of sufficient funding,[97]
and a lack of adequate systems[98]
that provide the “public [with an] efficient and accurate way of learning what
information the agency has how the files are arranged, how long they are kept,
or where they are stored.”[99] Although Congress has amended FOIA,[100]
in an effort to solve some these problems, many difficulties remain.[101]
The more
serious difficulty today is that, even though government has enacted various
pieces of legislation designed to promote greater openness and transparency,
the government has tried to maintain secrecy regarding major aspects of its
operations,[102]
including the fact that it is operating a secret cybersurveillance operation.[103]
Had it not been for Edward Snowden, an NSA contractor who decided to release
thousands of secret National Security Agency (NSA) documents,[104]
the American people might never have known much about the program.[105]
The size of
the NSA surveillance and collection program that Snowden revealed was
absolutely staggering.[106]
The NSA was spending some $10.8 billion per year[107]
and maintaining a staff of some 35,000 employees,[108]
in order to systematically collect data about virtually everyone, including
collecting millions of cell phone call records, emails, text messages, credit
card purchase records and information from social media networks.[109]
In addition, the NSA created a system (muscular) that enabled it to easily
access Yahoo and Google accounts.[110]
The end result was that the NSA intercepted some 182 million communication
records, including “to” and “from” email information, as well as text, audio
and video information.[111]
From the
perspective of openness, transparency and democratic accountability, the NSA
program was particularly disturbing. Undoubtedly, government has an interest in
shielding aspects of its terrorist surveillance programs from public view.
After all, if the goal is to discover and thwart potential terrorists, the
government cannot reveal its investigative processes so that potential
terrorists become familiar with the nation’s surveillance methods, and are able
to evade them. The difficulty is that the NSA program was shrouded in almost
complete secrecy with very little democratic accountability.
Not only
was there a lack of transparency, U.S. governmental officials affirmatively
misled the nation regarding the nature, size and scope of the NSA program. For
example, following the Snowden revelations, President Obama assured the U.S.
public that the NSA was not targeting ordinary U.S. citizens, but rather was
focused only on individuals who posed a terrorist threat to the United States,
and was focused on communications of “foreign intelligence value”[112]
and foreign intelligence targets.[113]
President Obama boldly proclaimed, “Nobody is listening to your telephone
calls.”[114] Likewise, the NSA declared that it was not
collecting and storing private online or phone information except under limited
circumstances: when it believed that the recording or transcript contained
“foreign intelligence information,” evidence of a possible crime, a “threat of
serious harm to life or property,” or that shed “light on technical issues like
encryption or vulnerability to cyber attacks.”[115]
However, it soon became clear that many of these statements were untrue. The
NSA had established a huge data collection and storage center (taking advantage
of the declining cost of data storage and advances in search software
sophistication),[116]
and was routinely collecting extraordinarily large amounts of information.[117]
As a result, even if Americans were not the intended targets of NSA
eavesdropping, they routinely fell “into the agency’s global net.”[118]
The NSA
cultivated secrecy in a variety of ways. The government issued National
Security Letters to large telecommunications companies, requiring them to turn
over data to the NSA, and ordering the companies served with the subpoenas not
to publicly acknowledge the letters or the disclosures, or even alert their
customers regarding the nature and scope of NSA inquiries.[119]
NSA Search warrants were (and are) issued by secret courts and the warrants and
the court orders were (and are) classified as “secret” and withheld from the
public. To the extent that individuals tried to challenge the surveillance
program in court, the courts refused to consider the cases because litigants
could not prove that the government was actually surveilling them (what a
surprise given the secrecy of the program?), and thereby could not establish
standing to sue under Article III of the U.S. Constitution.[120]
For those who made FOIA requests, those requests would have been denied on the
basis that information regarding the program was “classified” and “secret” and
therefore privileged.[121] In other words, secrecy rather than
transparency was the norm.
The
tendency towards secrecy even led governmental officials to deceive Congress
(and the public) regarding the scope of the program. In particular, NSA Director, James Clapper
lied to Congress about the program.[122]
When he was directly asked whether the NSA was collecting “any type of data at
all on millions or hundreds of millions of Americans,” he flatly stated, “No,
sir. Not wittingly.”[123] Clapper later admitted that he lied to
Congress.[124]
Because of Snowden’s revelations, the NSA’s authority to collect and retain
information was limited.
Freedom of
expression is an essential element of the democratic process. In order to
choose their representatives, or express their opinions on policy ideas or
proposals, the citizenry must have the right to freely and openly express their
beliefs. However, in order for citizens to fully exercise their right to free
expression, openness and transparency are also essential. Unless the public has
information regarding the functioning of government, it is impossible for the
citizenry to fully and effectively exercise their right to freedom of
expression. As a result, democratic accountability is inextricably intertwined
with transparency.
Over the
last century, the United States has made significant strides towards increasing
openness and transparency. Senate hearings on U.S. Supreme Court nominees,
which were once held in secret, are now open to public participation and
scrutiny. In addition, Congress has passed various pieces of legislation
designed to open up government, including the Administrative Procedure Act, the
Freedom of Information Act, the Federal Advisory Committee Act, and the
Government in the Sunshine Act. In addition, various executive actions have
been taken to open governmental actions to scrutiny.
Many of
these efforts to increase openness have enhanced the ability of the citizenry
to participate in the functioning of governmental process. When the U.S. Senate
opened confirmation hearings to the public, those confirmation processes became
more political with much greater public interest and participation. In some
instances, that participation has led the Senate to reject nominees, or subject
them to a heightened level of scrutiny. Statutes like the APA have also
increased citizen participation. The publication of NOPRs, in conjunction with
the enactment of administrative rule and regulations, have encouraged affected
individuals and entities to submit comments and attempt to influence agency
decisionmakers. In other words, there is a very real and strong relationship
between openness, freedom of expression and democratic accountability.
Citizen
participation has only been enhanced by the development of the Internet. The
Internet has dramatically transformed communication, including communication
related to the environment. It has enabled ordinary people to engage in
“sousveillance” in the sense that they can access environmental information
from both governmental and private websites. In addition, it has enabled
ordinary people to access the technical information needed to evaluate
environmental information, and has provided individuals with the legal
information needed to evaluate the information that they have discovered. In
short, the Internet has resulted in a shift in the balance of power that “has
the potential for profound implications among the regulated community,
regulators, and public interest advocates,” and that will make it “increasingly
difficult for the regulated community to avoid public scrutiny of environmental
performance.”[125] The Internet has also provided individuals to
communicate with administrative agencies online, as well as to mobilize
environmental activism. Through emails, listserves,
and a multitude of other Internet devices, individuals have the ability to
communicate with each other, to mobilize others, and influence the political
process. The net effect is that ordinary individuals have a
previously-unavailable capacity to engage in environmental activism.
Nevertheless,
the progress towards open government has been halting and incomplete. Even
though both the APA and FOIA require agencies to publish various types of
documents, those laws are frequently honored in the breach. Moreover, although
FOIA requires agencies to disclose various types of information on request,
FOIA is beset by numerous exceptions, as well as delays and calculated efforts
to avoid disclosure. The net result has been less than perfect, and less than
that which might otherwise be considered desirable. As a result, the goal of
open government remains a work in progress in the United States.
The goal of
openness is further undercut by the war on terror. As the cybersurveillance
controversy suggests, the United States has so far been unable to find the
proper balance between openness and secrecy. The government conducts a massive cybesurveillance operation, which involves collection of
communications information affecting virtually all Americans, the government
has tried to conduct this operation in secrecy, free of governmental or
democratic accountability. In a free society, this level of secrecy is
disturbing.
[1] See Seminole Tribe of Florida v. Florida,
517 U.S. 44, 96 (1996) (noting that “centuries ago” there was a “belief
that the monarch served by divine right”).
[2] See id.
[3] U.S. Declaration
of Independence (July 4,
1776).
[4] Id.
[5] See C. Edwin
Baker, “Scope of the First Amendment Freedom of Speech”, 25 U.C.L.A.
L. Rev. 964 (1978); R. H.
Bork, “Neutral Principles and Some First Amendment Problems”, 47 Ind. L.J. 1
(1971); Th. Emerson, “Toward a General Theory of the First Amendment”, 72 Yale
L.J. 877 (1963); A. Meiklejohn, “The First Amendment as an Absolute”, 1961 S. Ct. Rev. 245; R. Weaver, Understanding the First Amendment, 10-13 (5th ed. 2014).
[6] See id.
[7] See J.
Ackerman & I. Sandoval-Ballesteros, “The Global Explosion of Freedom of
Information Laws”, 58 Admin. L. Rev. 85, 89 (2006) (“The current rules on
open government are for the most part mainly a question of public hygiene. This
regulation is intended to increase the transparency of public administration,
with a view to better democratic control and social accountability of
government.”); K. McFate, “Keynote Address: The Power of an
Informed Public”, 38 Vt. L. Rev. 809, 825 (“Access to information is an
important tool of democratic accountability. Governments need information to
provide citizens with protection from harmful products and practices. Citizens
need to understand what their government is doing in their name.”).
[8] See R.
Weaver, From Gutenberg to the
Internet: Free Speech, Advancing Technology and the Implications for Democracy (2013); see also D. Crowley & P. Heyer, Communication
in History: Technology, Culture, Society (5th ed. 2007); I. Fang, A History of Mass Communication: Six Information Revolutions (1997);
Ch. Meadow, Making Connections: Communication Through
the Ages (2002); Weaver, Understanding the First Amendment, supra note 5, at 261-276.
[9] See: A History of Mass Communication, supra note 8, at 1-17.
[10] See:
Communication in History, supra note 8, at 82.
[11] See:
Communication in History, supra note 8, at 82.; see also R. Lasso, “From the Paper Chase to the Digital Chase:
Technology and the Challenge of Teaching 21st Century Law Students”,
43 Santa Clara L. Rev. 1, 4 n.2
(2002) (“The 17th century became known as ‘the century of genius’ in large part
due to the explosion of creativity and new ideas fueled by printing… Increased
output of printed works led first to the combination of old ideas, and later to
the creation of entirely new systems of thought.”); George Paul & Jason Baron, Information
Inflation: Can the Legal System Adapt?, 13 Rich.
J. L. & Tech. 1, 8 (2007) (“There has been only one transformative
advance in … writing technology… The printing press allowed mass production of
information and thus contributed to the Renaissance, the Scientific Revolution,
and the Protestant Reformation.”).
[12] See Weaver,
supra note 8.
[13] See S. Shane,
“No Morsel Too Minuscule for All-Consuming NSA: From Spying on Leader of U.N.
to tracking Drug Deals, on Ethos of ‘Why Not?’”, The New York Times, A10 (Nov. 13, 2013); D. Stanglin, “Snowden Says NSA Can Tap Email Chats”, The Courier-Journal, A3 (Aug. 1,
2013).
[14] See W.
Funk, S. Shapiro & R. Weaver, Administrative
Law 740 (West, 5th
ed., 2014) (hereafter Funk, Shaprio & Weaver).
[15] U.S. Const., Art. II, cl. 2, sec. 2:
“[2] He [The President] shall have Power, … by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the Supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law; but the Congress may by Law vest the appointment of such
inferior Officers, as they think proper, in the President alone, to the Courts
of Law, or in the Heads of Departments.”
[16] See R.
Beth & B. Palmer, Supreme
Court Nominations: Senate Floor Procedure and Practice, 1789-2011 10 (2011) [hereafter Beth & Palmer].
[17] See Beth
& Palmer, supra note 16,
at 10.
[18] Id. at 10-11.
[19] Id.
[20] See L. Greenhouse,
“Washington Talk: The Bork Nomination; In No Time At
All, Both Proponents and Opponents are Ready For Battle”, The New York Times A24 (July 9, 1987).
[21] See Ph. Shenon, “The Bork Hearings: Poll Finds Public Opposition to Bork is
Growing”, The New York Times A20
(Sept. 24, 1987) (“A growing number of Americans are expressing an unfavorable
opinion of Judge Robert H. Bork after his week-long testimony at Senate
hearings on his nomination to the Supreme Court, a New York Times/CBS News Poll
shows. The poll did not look to determine why more people were responding
unfavorably to Judge Bork. But it seemed clear that it was an effect of the
confirmation hearings last week, in which the judge reaffirmed his opposition
to Supreme Court decisions upholding abortion rights and personal privacy.”).
[22] See Greenhouse,
supra note 20.
[23] Id.
[24] See A. Rosenthal, “Bork Gives Abortion Rights Convention
Something to Shout About”, The New York
Times A12 (July 13, 1987).
[25] See Greenhouse, supra
note 20.
[26] Id. at 14; see also N. Lewis, “Gay Rights Groups Join Opposition to Ashcroft for Justice
Department”, The New York Times A15
(Jan. 9, 2001).
[27] See id.
[28] See H.
Abraham, Justices, Presidents, and
Senators: A History of U.S. Supreme Court Appointments from Washington to Bush II,
298 (5th ed. 2008).
[29] Id.
[30] 5 U.S.C. § 551, et seq.
[31] See Funk,
Shapiro & Weaver, supra note 14,
at 740.
[32] 5
U.S.C. § 553.
[33] 5
U.S.C. §§ 556-557.
[34] 5
U.S.C. § 553 (b).
[35] Id. at § 553 (b)
(“General notice of proposed rule making shall be published in the Federal
Register, unless persons subject thereto are named and either personally served
or otherwise have actual notice thereof in accordance with law.”).
[36] Id.
[37] Id. at § 553 (c) (“After notice
required by this section, the agency shall give interested persons an
opportunity to participate in the rulemaking through submission of written
data, views, or arguments with or without opportunity for oral presentation.”).
[38] Id.
[39] Id. at § 553.
[40] 5 U.S.C. § 553 (a) (1) &(2), and (b) (3) (A) & (B).
[41] See S.
Croley, “Public
Interested Regulation”, 28 Fla. St. L.
Rev. 7, 96 (2000) (“Rulemaking
certainly did not rein the agencies in. It is true, as McNollgast
argue, that notice and comment provided an opportunity for congressional
constituencies to mobilize against the EPA’s, FDA’s, and OCC’s rules. But, as
the examples show, the procedure also provided public interest groups, health
organizations, and academic researchers opportunities to register their data
and arguments in the agencies’ rulemaking record.”).
[42] 5
U.S.C. § 553 (d).
[43] See
Funk, Shapiro & Weaver, supra
note 14, at 740.
[44] See
James T. O’Reilly, Federal Information Disclosure, § 6.05 at 6-19
(2d ed. 1995).
[45] 5
U.S.C. § 552.
[46] 5
U.S.C. § 552 (a) (3).
[47] Id.
[48] Id. at § 552
(a) (6) (A) (I).
[49] Id. at § 552
(a) (6) (A) (1) & (2).
[50] Id.
[51] 5
U.S.C. § 552 (b).
[52] 5
U.S.C. app. §§1-15 (2000) (enacted 1972).
[53] 5
U.S.C. s 552b (b), (h) (1994).
[54] See Funk,
Shapiro & Weaver, supra
note 14, at 667-668.
[55]
Kentucky Open Records Act, KRS 61.878 (1) (h).
[56] See Weaver, supra note 8.
[57] K.
Harley & H. Gordon, “Public Participation and Environmental Advocacy in the Internet
Era”, 16 Nat. Resources & Environment 296 (2001) (“Ten years ago, … the
environmental movement inevitably was dominated by environmental organizations
that could afford to maintain staffs of scientists, organizers and lawyers.
Such organizations could accomplish internally driven policy initiatives,
fueled by membership contributions and grants from large foundations.”).
[58] Id.
[59] W.
Gilles & I. Bouhadana, “From the Right to Be Let
Alone to the Right to Be Forgotten: How Privacy Is Moving in the Collecting
Data Age”, in R. Weaver, S. Friedland, W.
Gilles & I. Bouhadana, Privacy
in a Digital Age: Perspectives From Two Continents ___ (2016).
[60] Id. at ___.
[61] See Harley & Gordon, supra note 57.
[62] See id.
[64] See Harley & Gordon, supra note 57, at 297.
[65] Id.
[67] See Harley & Gordon, supra note 57, at 297.
[69] www.nrdc.org/air pollution/cep
[70] See Harley & Gordon, supra note 57, at 297.
[71] Id. (“Perhaps
the best site for obtaining quality, understandable information about potential
hazards posed by different chemicals is offered by the Agency for Toxic
Substances and Disease Registry [ATSDR], a division of the Centers for Disease
Control.”).
[72] Id.
[74] See Harley & Gordon, supra note 57, at 297.
[75] Id.
[76] Id.
[77] Id. at 297-298.
[79] See Harley
& Gordon, supra note 57,
at 298.
[80] Id.
[82] See Harley & Gordon, supra note 57, at 298.
[84] See Harley
& Gordon, supra note 57.
[85] Id.
[86] Id. at 298.
[87] See D. Altman,
“Blogging and Thinking About the Big Issues: Managing Globalization”, International Herald Tribune 12
(May 30, 2007).
[88] See E. Berger,
“BLOG: SciGuy: Climate Olympics: Two Compete for the
Grandstanding Medal”, International New
York Times (Nov. 8, 2015).
[89] See B. Wassener, “A Fight That Doesn’t Need Heroes”, International New York Times 19 (Apr. 8, 2010).
[90] See D. Altman,
supra note 87, at 12 (May 30,
2007) (“When an editor suggested finding out why so few women left comments by
taking the subject on in a post, female ‘lurkers’ immediately made their
presence known with varying degrees of indignation.”).
[91] Id.
[92] Id. (“While
commenters butted heads and shared their knowledge, was anyone in high places
reading? Apparently so, as Stephen Adams, a spokesman for Peter Mandelson, the
European Union’s commissioner for trade, took issue with the headline
‘Mandelson: Repent, repent!’ He had read it as ‘Mandelson, repent, repent!’
After a short offline discussion of punctuation, Adams contributed a
substantive response to the blog.”).
[93] See
Funk, Shapiro & Weaver, supra
note 14, at 742.
[94] See: General
Accounting Office, Freedom of Information Act: Noncompliance with Affirmative
Disclosure Provisions (1986).
[95] See: Funk,
Shapiro & Weaver, supra
note 14, at 742.
[96] Id.
[97] See M. Tankersley,
How the Electronic Freedom of Information
Act Amendments of 1966 Update Public Access for the Information Age, 50 Ad. L. Rev. 421, 423 (1998).
[98] See id. at 424.
[99] Department of the Interior, Report of the
Nat’l Performance Rev. Freedom of Information Act Reinvention Team, Gateway to
Government Information at 11 (1995).
[100] Pub. L. No. 104-231, 110 Stat. 3048
(1996) (codified at 5 U.S.C. § 552 [Supp. II 1996]).
[101] See Tankersley,
supra note 97, at 450.
[102]
For a more comprehensive discussion and analysis of this program, and its
democratic implications, see R. Weaver, Cybersurveillance in a Free Society, 72 Wash. & Lee L. Rev. 1207 (2015).
[103] See Stanglin; supra note 13, at A3; Shane, supra note 13.
[104] See S. Shane,
supra note 13; D. Stanglin; supra note 13, at A3.
[105] E.g.,
Shane, supra note 13, at
A18.
[106] See Shane,
supra note 13, at A10.
[107] See id.
[108] See id.
[109] See id. at A10; see also P. Maass, “How Laura Poitras
Helped Snowden Spill His Secrets”, The
New York Times, § MM (Aug. 13, 2013); Ch. Savage, “C.I.A. Ties to AT&T’s Add Another Side to Spy
Debate”, International Herald Tribune,
A5 (Nov. 8, 2013).
[110] See B. Gellman & A. Soltani, “NSA Hacks Yahoo,
Google: Global Data Links Expose Untold Millions of Accounts”, The Courier-Journal, A-1 (Oct. 31,
2013).
[111] See M. Mendoza, Reagan’s Order Led to NSA’s Broader Spying,
The Courier-Journal, A10, c. 1-6 (Nov. 24, 2013).
[112] See S. Shane,
“Documents Detail Restrictions on N.S.A. Surveillance”, The New York Times A9 (June 21, 2014); see also Mendoza, supra note 74,
at A10.
[113] Id.
[114] Id.
[115] Id.
[116] See S. Shane & D. Sanger, Job Title Key
to Inner Access Held by Leaker, The New York Times A1 (July 1, 2013).
[117] See Documents Detail Restrictions,
supra note 112.
[118] See id.
[119] See Shane,
supra note 13, at A10; Stanglin, supra
note 13, at A3.
[120] See Clapper v. Amnesty International USA,
133 S. Ct. 1138 (2013).
[121] See 5 U.S.C. § 552 (b).
[122] See Editorial
Board, “Edward Snowden,
Whistle Blower”, The New York Times A18
(Jan. 2, 2014) (“[Snowdens’] leaks revealed that
James Clapper Jr., the director of national intelligence, lied to Congress when
testifying in March that the N.S.A. was not collecting data on millions of
Americans. (There has been no discussion of punishment for that lie.)); A. Rosenthal, “Clapper and Carney Get Slippery on Surveillance”, The New York Times, Taking Note (Oct.
24, 2013); Ch. Savage & S. Shane, “N.S.A. Leaker Denies Giving
Secrets to China”, The New York Times A5
(June 18, 2013) (suggesting that Snowden decided to go public because Director
Clapper had lied to the American public regarding the NSA data collection
program).
[123] See N.S.A. Leaker Denies Giving Secrets to
China, supra note 122.
[124] See Rosenthal, supra note 122.
[125] See Harley & Gordon, supra note 57, at 297.