Monday, December 6, 2010

Biased Opinion - A Defense of (and Farewell to) Confidentiality

As most everyone knows, WikiLeaks has caused quite a stir among U.S. government officials recently by releasing (among other things) something on the order of a quarter million secret diplomatic cables (supposedly leaked by Pfc Bradley Manning) revealing all kinds of information from the mundane to the embarrassing to the potentially damning. This has caused many people, including Secretary of State Hillary Clinton to react angrily, and some Republican members of Congress to call for WikiLeaks head Julian Assange to be arrested as a spy and executed.

Of course, the internet has reacted to these overreactions with indignation, often coupled with an assertion that eliminating government secrecy is a glorious end, and many going to far as to say that eliminating confidentiality in general is a truly noble goal. Leaving aside the fact that this leak is likely to have the opposite effect - I predict that governments will make obtaining data much more difficult by restricting access to a more limited group of people, compartmentalizing data collection and storage reducing the ability of different government agencies to work together, and much of diplomatic communication will be conducted in code akin to that used by organized crime to prevent wiretapping police investigators from figuring out what they are talking about - the loss of confidentiality is something that I believe we will ultimately lament.

As a lawyer, I deal in confidentiality on a professional basis. Most people are aware of the existence of attorney-client privilege from watching courtroom dramas or reading detective novels. Basically it functions like this: if I have a client and they tell me something, except under very limited circumstances, I cannot disclose that information to anyone else unless my client gives me permission to do so. The complete set of rules governing attorney-client privilege is more extensive than that, but that is the core of it. The reason this privilege exists is to encourage clients to be completely honest with their attorney so they can be provided the best and most accurate advice possible. While this system results in secrets that remain locked away that in a perfect world would be revealed, on the balance, we have determined that the benefits outweigh the drawbacks. Similarly, a patient's communication with his doctor is also protected, and for much the same reason. And for many of the diplomatic cables at issue, a very similar argument could be made. If confidentiality is the rule, when diplomats in foreign country send information back to their government, they can do so confident that they can be candid in their assessments without negative repercussions. In this way, the decision makers within the government have accurate information upon which to base their decisions.

Whether this sort of hidden candor is believed to be a societal good is, of course, up to the beholder. Assange clearly believes that it is not, and this sort of candor should be exposed to the public as a whole and this will make governments more responsive to their citizens. But that seems rather like saying that a married couple attempting to reconcile after a separation would be better served if all of their neighbors could sit in on their sessions with a marriage counselor. Confidentiality is oftentimes a good thing, allowing people to feel comfortable enough to share information that otherwise they would simply keep to themselves. In many cases, it doesn't merely lubricate the wheels of discussion, it makes them turn. In a world in which the possibility of a WikiLeaks type disclosure lurks everywhere, it is quite likely that communication could simply wither and die.

But I doubt governments will change in the way Assange and his proponents think they will change. They will opt for more security and more confidentiality, not less. The real net result will be that diplomats in foreign countries will probably be less willing to put their true thoughts on paper and send them back to their home capitol, but will instead hedge their meaning, couch their assessments in euphemisms and otherwise make their writing more opaque. And once the data reaches the home office, it won't be shared with other agencies in the government, because compartmentalizing data will serve to limit the potential damage if there is a leak. Which, for the United States, would put us into a position where (for example) the Department of State, CIA, Department of Defense and Department of Homeland Security aren't sharing data - a situation that would be similar to that intelligence experts suggested contributed to the intelligence failure that allowed the 9/11 conspiracy to succeed. It is hard to see how a less candid flow of information into separate zones of jealously guarded data will constitute an "improvement". And this doesn't even begin to catalogue the likely responses governments will have that will make them more secretive, more suspicious, and less integrated. Instead of a more transparent government, we will probably get governments that guard their data and police the internet as zealously as China does.

But all of this is not the real point. The real point is that exposing the internal workings of government like this is only the tip of the iceberg. The real point is that this exposure of confidential data is unlikely to stop with Department of Defense communiques and Department of State cables. Before too long, someone is going to leak all of the medical records held by your hospital. Or every one's driving records, including their addresses. Or all of the transcripts and student files from the archives of the college you graduated from. In short, before too long, the flood of confidential information being set free will include your data, my data, and everyone else's data. The real loser here isn't going to be governments, who have the resources and the manpower available to alter their management of information in such a way that, while not optimal for accomplishing their objective, would be more secure. The real loser is the private citizen, who simply will not have the wherewithal to prevent their private data from becoming generally available to anyone who bothers to go out and look for it. WikiLeaks does not herald a change in the transparency of government. WikiLeaks heralds the end of personal confidentiality.

When I was in law school, one of my professors used the "front page of the Washington Post" example. This example goes like this: if you are engaged in activity in your professional capacity and you would be embarrassed to have an article explaining what you did printed on the front page of the Washington Post, don't do it". This is a fairly simplistic thought exercise, and was intended to provide young law students with an easy to follow rule of thumb to follow when they were unsure as to what the right course of action would be when they were confronted with an ethical decision once they ventured out into the legal profession. But very shortly, not only will there be the possibility that everything you do or have done might be posted on the internet equivalent of the front page of the Washington Post for all to see, it will be a virtual certainty that it will be, if it hasn't happened already. I think we are going to look back and miss the days when we had at least a pretense of confidentiality and privacy. But I don't think there is any realistic possibility of preventing them from slipping away at this point.

So, I'll just say to all of you who are exulting in the free flow of Department of State data that WikiLeaks has created, I hope you still feel the same way when it is your data that is dropped into the fast moving river of information. Because before you know it, it probably will be.

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