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American Journalism Review
There They Go Again  | American Journalism Review
From AJR,   January/February 2003

There They Go Again   

In the name of (surprise!) security, the government blocks access to public information.

By Jane Kirtley
Jane Kirtley ( is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

The federal Freedom of Information Act has become another casualty of 9/11, and most Americans neither know nor care.

A little over a year after President Bush signed the sweeping USA Patriot Act, which granted unprecedented authority for the government to conduct electronic surveillance, Congress passed the equally bulky Homeland Security Act. Its 484 pages are chock-full of provisions ostensibly designed to increase our safety by facilitating information-sharing among federal and state agencies, as well as private industry, to help avert terrorist attacks. Specifically, it encourages companies to voluntarily cough up "critical infrastructure information," broadly defined to include any kind of material that relates to actual or potential threats to security.

One could hardly expect chemical and pharmaceutical manufacturers, or computer conglomerates and nuclear power plants, to share information about their vulnerabilities with the government without getting something in exchange.

No, it's not money. It's secrecy.

The lengthy wrangling over the homeland security legislation resulted in compromise language attempting to strike a balance between legitimate confidentiality provisions and the public's right to know. At the tail end of this debate, revisions were slipped into the House version. They gut the FOIA by exempting any critical infrastructure information that eventually finds its way to the new Department of Homeland Security, even if it is initially filed with another agency. Not only will the information itself be withheld from the public, but the identity of the company that submitted it will be secret as well.

In the event that the federal government decides to share the information with state or local authorities, they are sworn to secrecy, too. The Homeland Security Act explicitly says that state open-records laws can't be used to pry loose critical infrastructure information. And just to make sure that everything stays locked up tight, the act makes it a crime for a federal government employee to disclose this material to anyone who isn't authorized to receive it. That's you and me, and everybody else outside government.

The usual open-government advocates, including media organizations and public interest groups, tried to sound the alarm. It seemed so obvious. How could the public relinquish the right to find out about vulnerabilities in transportation, energy and utilities? As Kevin Goldberg, legal adviser to the American Society of Newspaper Editors, told the Associated Press, "If there's a problem so pervasive and so dangerous that a private company needs to discuss it with the government, it's probably important enough for the public to know."

But in this climate of escalating secrecy, the public appears content not to know, at least if the enthusiastic support of Congress is any indication. And although it may have been a coincidence, it didn't hurt the supporters of the exemption that, on the eve of the voting, the FBI issued a new warning about a threat of "spectacular" terrorist attacks. The FBI's announcement was not specific, but it did remind us that "the highest priority targets remain within the aviation, petroleum, and nuclear sectors"--many of the industries that would benefit from the new FOIA exemption. As Sen. Patrick Leahy, D-Vt., put it, the Homeland Security Act brought about "the most severe weakening of the Freedom of Information Act in its 36-year history."

Yet that's OK with most of us. The message from the American public to Congress seems to be: "Information is dangerous. I don't want to take any responsibility for my own security. Keep me safe. And don't tell me how you do it."

Meanwhile, John Poindexter, retired Navy rear admiral and Reagan national security adviser, comfortably ensconced at the Defense Advanced Research Projects Agency at the Pentagon, thinks the government needs more tools to spy on us. He proposes the creation of a new program, Total Information Awareness, that will use computer technology to allow the government to "mine" data about our everyday electronic transactions, like sending e-mail, making telephone calls and buying stuff with credit cards.

Columnists ranging from Nat Hentoff in the Village Voice to William Safire in the New York Times have denounced the plan as an attempt to spawn an Orwellian centralized database enabling the government to create dossiers on everyone. But don't worry. Poindexter promised that the technology will "preserve rights and protect people's privacy while helping to make us all safer."

I'll bet that means the public won't have access to this information, either. But that's OK. Just keep me safe. Don't tell me how you do it.



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