February 16, 2012
What are the practical limits of secrecy in the digital age?
Some of those limits are starkly illustrated by a recent initiative undertaken by the American Civil Liberties Union.
The ACLU submitted a Freedom of Information Act request to the United States Department of State which was designed to test the boundaries of federal government claims of secrecy for national security documents and information.
In its FOIA request, the ACLU sought release of 23 specific documents which had been previously, and without authorization, published through the online forum, WikiLeaks.
In its recent response to the FOIA request, the State Department withheld 12 of the requested documents, claiming that national security concerns prevented their release.
The Department of State released the other 11 documents, however, all contained substantial redactions.
Although the actions of the State Department were understandable, given current laws associated with national security, the response to the ACLU inquiry highlights some of the problems the Internet and other technologies pose for confidentiality.
For example, the State Department found itself in the seemingly absurd position of claiming confidentiality for a set of materials which have been globally accessible and routinely copied and reviewed by a vast number of people around the world for several months.
Additionally, the release of redacted versions of some of the documents had the unintended consequence of identifying for the public the specific portions of the confidential materials deemed by the U. S. government to be the most sensitive.
The redacted versions provided a form of reverse highlighting, enabling readers to compare the redactions with the complete texts available online to see the precise sections containing the most important information.
The set of redacted materials helps readers to identify the most important sections of the millions of pages of documents available through WikiLeaks.
There are other significant and potentially harmful consequences associated with the State Department’s effort to perpetuate secrecy claims for materials that are now widely accessible.
For example, if the State Department continues to treat the materials released through WikiLeaks to be legally tainted, it will also continue to treat all unauthorized individuals who download or read those materials to be violators of national security laws.
If those individuals currently work for the federal government, they could be subject to disciplinary action.
Additionally, young people who access the materials might be unable to qualify for future employment with the State Department or other federal agencies.
This raises the odd and counterproductive potential situation of disqualifying young people who had enough personal interest in international affairs to read portions of the WikiLeaks materials from future employment with the State Department, although those young people would seem to be ideal candidates for such employment.
Among the various lessons presented by this experience, perhaps the most important is the fact that traditional legal remedies designed to protect secrecy provide far less protection in the digital age.
Once secrets are leaked, they are quickly accessible on a global basis.
Thanks to the Internet, a single leak essentially ends confidentiality. A secret leaked is a secret lost forever.
In this environment, guardians of material which must be secured should focus their efforts on preventing unauthorized disclosures. They should not assume that legal remedies will enable them to stop disclosures or achieve adequate remedial measures.
Finally, keepers of secrets should assume that no information can be kept confidential for any extended period of time, and they should modify their strategy and their behavior accordingly.