A Predator of Information

From Wikileaks, we learned that huge piles of Classified and Sensitive information have really no business being restricted. The Trans-Pacific Partnership showed our government acting in collusion with trans-national corporations to secretly negotiate a treaty whose details were kept away from the voters of the world^[1]. Edward Snowden showed that National Security Agency behaving in a positively criminal^[2] fashion under a guise of secrecy.

It is my contention that government secrecy should be an adversarial process. It should be hard to make something secret so people are less tempted to slather restrictions all over everything on the assumption that nobody ever got in trouble for being too careful. We ought also get rid of much of the notion of ‘sensitive’ information. It is far too broad.

When a worker in an agency wants to classify a document (to put any restriction on its distribution) they should be required to go to a Secret Court and ask for a hearing where they will be met with the an Advocate for The People. The Advocate for Secrecy would have to make a case for secrecy and argue for a specific term. The Advocate would argue down excessively long terms, argue against secrecy justified by unlikely threats or “Just to be safe”. After each hearing^[3] a redacted copy of the transcript would be made available, and when the classification ran out, the unredacted transcript would be released. This is important, since the public need to be able to ensure that the Secret Court^[4] has not become a rubber stamp.

There should be special provision made for certain things that shouldn't be adversarial, like the personal and financial details of every government employee. Similarly, identifying information for sources of data should be protected, at least for a limited time. Things like ‘weapons systems’ should definitely not be automatically secret. The people have every reason to know by what means war is being carried out in their name. Given time pressures letting the relevant people declare secrecy on a document for a period of a few days (though I would like to see some mechanism put in place to take secrecy authority away from them and give it to someone else if they abuse it.) There ought to be a definite time limit, to prevent things being classified indefinitely without a hearing due to people not getting around to going to the Secret Court.

During an actual declared War, emergency classification could be extended to longer terms and a greater presumption of good faith. This would also have the nice effect of making the US actually declare some of the wars it fights in so it has a harder time excusing itself from the Geneva Convention.

[1] I'm not against free trade, I'm quite in favor of it. However, that doesn't mean that just because you write ‘free trade’ on something that contains very un-free-trade-like contents I'm going to support it. There is no economic reason to expand copyright terms around the world. The Trans-Pacific Partnership regulates parallel imports and otherwise bolsters geographic distribution regimes when any real free-trade agreement would outlaw them. Anti-Circumvention law has nothing to do with free trade. It also creates a mandate to protect trade secrets, which is actively bad. No state has any business shielding any company in its pursuit of keeping secrets. Patent laws work in the exact opposite way by giving people an incentive to make their discoveries public, and that is the only direction that should be given a society's seal of approval. The Investor State Dispute system, while likely well-meant, is also far too broad and would create a very uneven playing field between nations with small economies and large trans-national corporations that would make enacting laws to cover new public safety and environmental protections very financially risky. The fact that there is a specific carve-out to protect states from suits by tobacco companies says to me that the law as written does not adequately take into account public safety concerns generally. If it did, there would be no need for a special case.

There is some actual worthwhile stuff in there, like environmental and labor protections. If the treaty had not been negotiated in secret and if advocates for consumers and human rights groups had been allowed in (and not just multinational corporations) then we could have focused on those aspects and hammered out the problematic details. Also, it is true that free trade agreements make nations wealthier, but the wealth is not spread evenly. Investors are left better-off and laborers are left worse off. As such, I believe every free trade agreement should come with redistribution and retraining provisions to make sure the rising tide really does lift all boats. I am not willing to pass any free trade agreement and wait for redistribution later. Because the average worker does not have flocks of lobbyists working for them, ‘later’ never ends up arriving.

[2] Other things I can forgive, but not BULLRUN. The people who set out to actively make cryptographic systems less secure ought to be put on trial. If nothing else we should find out exactly who ordered such a thing and what their reasoning was so we can put safeguards into place to make sure it never happens again.

[3] Not necessarily immediately after. I am aware that having ninety successfully granted secrecy requests all show up at once might be undesirable in war-time, so putting them out in randomly sized batches with random delays could be acceptable.

[4] And doesn't the name feel much more appropriate when it's a court where secrets are put on trial? Though I'm not sure if it's a death penalty. When I imagine a secret finally being set free my mental image is of a salamander splitting open and a brightly glowing angel flying out.