Campaign Disclosure, Privacy and Transparency

INTRODUCTION The United States has a long history of creating "public records" and viewing at least some of these as an essential part of government accountability.1 Public records minimize opportunities for secrecy which might shield the actions of elected and appointed officials from public scrutiny. Historically, decisions to require public disclosure of information were made with particular limited purposes in mind: purposes associated with the public or democratic value of the disclosure.2 Freedom of Information Act requirements, at both the federal and state levels, further opened access to government information and facilitated further disclosures of government information.3 The Internet has exponentially escalated access to public records; information posted on the Internet is effectively broadcasted to anyone in the world who may be interested. The interested viewers may have benign, nefarious or legitimate reasons for being interested, and their interests may or may not be related to the original purpose for making the information public. Property tax records, professional licenses, parking tickets, sex offender databases, court records, and campaign disclosure are all good examples of such public records.4 As public records have been made available in computerized form and posted on the Internet, public concerns about protecting the privacy of personally identifiable information in these records have intensified. Before computers and information technology, those who wished to see and copy information in public records had to traipse to a public building, request a record, wait for the staff to find it, carefully read through the record to find the item(s) of interest, and then copy the desired information manually.5 The physical presence and labor involved resulted in "practical obscurity,"6 that is, the work involved in obtaining access and duplicating information had the effect of protecting the privacy of the information. In the networked world, those built-in protections are removed and there is little or no obscurity. Records can be easily accessed, searched, analyzed, and reconstituted in new forms from nearly anywhere in the world. As early as 1989 in Department of Justice v. Reporters Committee for Freedom of the Press, the Supreme Court recognized that "there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information."7 In that decision, the court held that rap sheets were not public information for the purposes of the Freedom of Information Act, recognizing "the privacy interest in keeping personal facts away from the public eye"8 and "the privacy interest in maintaining . . . [its] 'practical obscurity.'"9 Public records or not, the ease of access to personal information made possible by information technology and the Internet has resulted in what Joel Reidenberg refers to as the "transparent citizen,"10 what Dan Solove terms the "digital person,"11 and what Jeffrey Rosen sees as the "unwanted gaze."12 Personally identifiable information is somewhat up for grabs by those who have money, time, technological skills, and motive. Although the contours and implications of "information societies" have been and continue to be identified, analyzed, and critiqued, the radical shift in what it means for information to be in "public records" is often noted but less often analyzed. 13 An important implication of this shift is an intensification of the tension between privacy and transparency. As Joel Reidenberg points out, the "scope of transparency and the ease of re-purposing are a surprise to data subjects and the public at large."14 A powerful example of this is the release of publicly available information about Justice Scalia by Fordham law students.15 The new landscape of information accessibility and flow calls into question whether the common good requires new principles, controls, and regulation. …