By Alasdair Roberts
The author is Professor of Law, Suffolk University Law School, Boston USA This is his address to the International Seminar on Accountability and Corruption Control, Mexico City, Oct. 21, 2014. He is a fellow of the National Academy of Public Administration and a public member of the Administrative Conference of the United States. His most recent book is The End of Protest: How Free-Market Capitalism Learned to Control Dissent (Cornell University Press, 2013). His website is http://www.aroberts.us.
The Freedominfo.org website reported in September that Paraguay has adopted a national right to information law, so that the total number of such laws is now exactly one hundred. [1] This is cause for muted celebration. Some laws are better than others, and even well-drafted laws can prove useless in practice. Still, this is evidence of progress toward increased governmental transparency.
The new global commitment to governmental openness is demonstrated in other policies as well — for example, in the adoption of stronger whistleblower protection laws, laws to improve the disclosure of information about government spending, social audit projects, international efforts such as the Extractive Industries Transparency Initiative, national open data exercises, and regulatory projects that rely mainly on the disclosure of information about regulated enterprises. Of course this does not exhaust the list. Over the last twenty years we have learned that transparency can be used to improve governmental accountability and performance in many ways. We have also become much better at understanding the political, bureaucratic and social factors that influence the adoption and successful implementation of transparency policies.[2]
But the news is not all good. Over the last twenty years we have also witnessed the emergence of powerful trends — such as economic globalization, the growth of terrorism, and a backlash against the democratic surge of the late twentieth century — that have encouraged stronger resistance to transparency policies. And old approaches to transparency may not work well in a world in which governments and businesses are harvesting vast amounts of digitized information about citizens and customers. For all of these reasons, citizens need friends — by which I mean organizations that are prepared to resist the rollback of transparency policies, and also explain precisely what governments and businesses are doing with the information they collect. But will there be a ready supply of organizations to play the role of trusted intermediary? This is the crucial question.
New pressures to resist transparency
Of course, one of the most important obstacles to transparency is the natural resistance of politicians and bureaucrats to policies that, from their point of view, make it more difficult to address important problems in a timely way. Even politicians who once favored transparency have been known to take a different view after a few years in office. We all remember Tony Blair’s recantation in 2010. The British Freedom of Information Act, Blair said shortly after leaving office, was “one of the domestic legislative measures I most regret.”[3]
But there are also deeper forces that are now working against openness. One is the economic globalization. Certainly there are ways in which the growth of a globalized market economy has encouraged greater transparency. (For example, financial and commercial enterprises form a powerful lobby in favor of improved transparency about macroeconomic, trade and regulatory policies.) But economic globalization has also encouraged the privatization or autonomization of key governmental activities, which tends to undermine the commitment to transparency. And it also means that critical policy decisions are made in the context of international negotiations that are shielded from public view. Controversy over the secrecy surrounding the Trans-Pacific Partnership, a proposed twelve-country trade agreement, is only the most recent example of this problem.
Economic globalization has also encouraged the concentration of power over macroeconomic policies, and the concentration of power is generally not a phenomenon that promotes greater openness. We live in a world of strong finance ministries and powerful central banks. This process has been encouraged by the perception among governing elites that the concentration of authority is necessary to assure discipline in fiscal and monetary policies — and also to provide a clear signal to financial markets that discipline is being taken seriously. (In a globalized market, discipline must not only be done, it must be seen to be done.) Moments of economic crisis, such as the period following the 2008 crisis, also encourage the concentration of power, as well as the tendency to regard transparency as a luxury good rather than a necessity.
Of course the global financial crisis is not the only calamity that has undermined the commitment to transparency over the last twenty years. In many advanced democracies, the threat posed by Islamist radicalism has had the same effect. Fears about national security have been used to justify greater secrecy. Moreover this secrecy applies to many aspects of domestic policy, precisely because the threat is posed by non-state actors using unconventional methods of attack against targets within national borders. The old idea that secrecy was a particular problem in foreign rather than home affairs has begun to break down.
Less Popular by Association
There is also a broader ideological trend that is undermining support for the idea of transparency within our governing elites. It is important to remember that the rise of transparency as an ideal was closely tied to the global movement for democratization in the 1980s and 1990s. The collapse of the Soviet Union, the end of apartheid in South Africa, the collapse of authoritarian regimes in Latin America and Asia — all of these events seemed to signal the final triumph of democracy over rival forms of government. (“What we may be witnessing,” Francis Fukuyama famously wrote, is “the universalization of Western liberal democracy as the final form of human government.”[4]) Of course, it was hard to see how democracy could work if citizens did not have access to information about the workings of governmental institutions. Transparency gave substance to the principle of popular rule.[5]
But this latest wave of enthusiasm for democracy crested over a decade ago. Some states, such as Russia, have retreated from their commitment to democratic principles. Countries such as China, practicing a form of “market authoritarianism,” appear to be enjoying robust economic growth. And in the West there is a growing sense of disappointment about the performance of long-established democracies that appear to be unable to deal with major problems such as indebtedness, economic stagnation, inequality and climate change. Indeed, one of the remarkable features of the period since the financial crisis of 2008 has been the boom in scholarly writing about the weaknesses of democratic forms of government.[6] There are strong parallels to intellectual trends in the 1970s, when many scholars worried about problems of “democratic sclerosis.”
One of the side-effects of this recent reversal in confidence about democracy has been a more skeptical view about transparency. Openness is now regarded as one of the factors that has contributed to the seizing-up of democratic systems. An illustration of this is a recent book by an American policy analyst, Jason Grumet. American government, says Grumet, “is more open, more transparent, and less functional than ever before . . . It is time to dispel the simplistic notion that transparency in government is an unmitigated good.”[7] And Francis Fukuyama himself, in his new bestseller Political Order and Political Decay, makes the same argument. American democracy has become dysfunctional, Fukuyama says, partly because of an excess of transparency. Openness has corroded the capacity of policymakers to deliberate, and undermined the effectiveness and legitimacy of government.[8]
Exploiting New Technologies
Another factor that is complicating the movement for transparency is the advent of new information technologies. Of course, there are many ways in which these new technologies have improved openness. In many respects, people have faster and more reliable access to information about domestic and world affairs. But the effect of new technologies is not entirely beneficial. New information technologies can obstruct as well as improve transparency, and it is not clear whether, on balance, they will have the effect of producing a world in which individuals have a better understanding of how power works in their societies.
The anthropologist James C. Scott has observed that states are constantly engaged in the project of making the societies they are attempting to rule more legible. “The premodern state,” Scott says, “was, in many respects, partially blind . . . It lacked anything like a detailed ‘map’ of its terrain and its people.”[9] Improving legibility means increasing the state’s capacity to observe what is happening within its territory, and also arranging social and economic life so that it is more easily observed. Legibility, Scott observes, is a precondition for effective rule. A state cannot design effective policies if does not understand how society works.[10]
States consequently have strong incentives to exploit the potential of new technologies to improve their understanding of the societies they wish to govern. This is particularly the case where vital interests, such as territorial integrity and public order, are at risk. We have seen evidence of this reality in the United States over the last two decades. As the disclosures by former NSA analyst Edward Snowden have shown, American national security agencies have developed extraordinary capacities for monitoring domestic and international communications. (How often they use those capacities to monitor domestic communications is a separate question.) Snowden showed that allied powers such as the United Kingdom have developed comparable capacities. And it is prudent to assume that many other states, friendly and hostile, are racing to exploit the potential of these new technologies as well.
States are not the only actors that are engaged in the struggle to improve legibility. The private sector has a similar problem. To adapt Scott’s language, businesses cannot thrive if they do not have detailed maps of their markets and customers. The businesses that will survive are those that are most adept in exploiting new information technologies so that they understand where and how to sell their products.[11] Technologies that are now in everyday use — such as credit cards, cell phones, computers, television set-top boxes, automotive telematics systems — already generate vast streams of data that can be harvested for commerical purposes. And the amount of data that is available will explode as we travel further into the age of the “internet of things” — that is, the age in which a large number of other devices are capable of emitting data to the internet. States are incidentally advantaged by private sector competition to harvest this data, because anything that is held by commercial actors might (if the law permits it) be collected by government agencies as well. To a large degree, governments and businesses have a joint interest in improving the legibility of markets and societies.
But look at this trend from the point of view of citizens. From their position, the drive to improve legibility is simply a campaign against privacy. The portion of everyday life that can be monitored by third parties is steadily expanding. Moreover, it is increasingly difficult for citizens to “drop out”, to borrow a phrase from the 1960s, because the new technologies are so pervasive and essential to the pursuit of a meaningful life. Or, to use Albert Hirschman’s language: there is no possibility of exit.[12] People are stuck in this world whether they like it or not. And as a result they will have a strong interest in knowing precisely what commercial and governmental organizations are doing with the vast cloud of personal information that people are inadvertently generating. Again, to adapt the language of James Scott: individuals have an interest in improving the legibility of these new systems of public and private governance.
Complex Information Incomprehensible
Two problems arise immediately. The first and more obvious problem is that much of the information that citizens would like to have is held by private actors who are not traditionally covered by right-to-know policies. The second, less obvious, but perhaps more serious problem is that this information is likely to be incomprehensible to citizens, even if they do gain access to it. The problem is illustrated by the Snowden leaks. Glenn Greenwald, the journalist who worked closely with Snowden in making information about NSA surveillance publicly accessible, admits in his 2013 book that he was daunted by the “size and complexity” of the documentation that Snowden had provided.[13] Fortunately Greenwald had some background knowledge, access to Snowden himself, and time to sort the matter out, thanks to the support of a major media outlet, the Guardian.
Most people have none of these advantages. The mere disclosure of information about the design of new surveillance technologies would do us no good at all, because we have no way of understanding what that information means. Similarly, if we were somehow to gain access data about our own activities that has been collected by public or private actors, we would have neither the technical means or knowledge necessary to make sense of that either. In the old days, a request for personal information might result in the release of a dossier, which we could open and read.[14] All that was required a basic level of literacy, and some knowledge of bureaucracy, to understand the significance of what was held within the file. But those days are gone. As a practical matter, most of us are now illiterate, insofar as new systems of surveillance and control are concerned.
This fact might have disturbing implications with regard to the maintenance of legitimacy in the advanced democracies. The capacity to govern depends less on the state’s ability to coerce compliance than on the public’s recognition of the state’s right to rule.[15] The question is whether legitimacy can be maintained when citizens are conscious of increasingly pervasive surveillance, and are incapable of evading that surveillance, but are also incapable of understanding precisely when that surveillance is being undertaken, or the purposes for which data gathered is being used. It is conceivable, of course, that individuals will learn to be content in a world like this, so long as they maintain a high standard of living and are protected against arbitrary exercises of public or private power. But we have no sure way of knowing that this will be the outcome, because no such society has existed before.
Why we need friends
One important implication flows from these general observations about the state of transparency. It is that citizens will be more dependent on third parties — groups that I will call trusted intermediaries — to assure that transparency policies are maintained, and help make sense of information that is accessible through transparency policies. Of course, we already rely on intermediaries such as non-governmental advocacy groups, ombudsmen and commissioners, media and political parties. But our dependence on intermediaries will increase, and this will raise the difficult question of whether such groups can acquire the resources needed to do the job of intermediation properly.
Intermediaries must perform two important tasks. The first is making the public case for transparency. The immediate challenge is to challenge the notion that transparency is a luxury good that can be sacrificed under conditions of austerity, or in the process of economic liberalization, or during moments of crisis. It will also be necessary to resist the argument that excesses of transparency have contributed to the current “democratic malaise,” assuming that is a fair diagnosis of current conditions. Transparency is a critical technique for preventing the arbitrary use of public and private power. It is also essential to preserving the capacity of societies to judge the performance of public institutions, and decide when those institutions should be altered. Even if we concede that special measures may be necessary during moments of crisis in democracies, transparency is essential to determine when those moments have passed, and when those special measures should be unwound.
The second task is more important. Increasingly, intermediaries will have to acquire the technical capacity to extract information that is accessible in principle, and make sense of that information. This is not simply a matter of asking for files. It means having the knowledge that is needed to understand how information systems are organized; the equipment that is needed to process large amounts of digitized information; and the skill necessary to explain in plain language what public and private bodies are capable of doing, and what they are in fact doing. To perform this work, intermediaries will also need more resources than they have had in the past. And they will have to be organized in such a way that they are regarded as trustworthy by citizens, given that citizens will have no direct way of assessing whether intermediaries are interpreting data properly.
Intermediary Blues
The problem of building trusted intermediaries is not entirely new. Even in the pre-digital age, the success of transparency initiatives like right to information laws hinged heavily on the capacity of third parties to help with the task of extracting and interpreting information. And we have already seen an intimation of some of the difficulties that can arise. For example, we once relied heavily on newspapers and other mainstream media to act as intermediaries. They did this work for profit. But newspaper revenue in some countries has collapsed over the last fifteen years, undercutting the ability of the industry to invest in the task of intermediation.[16] In some countries, the work of intermediation has also been done by non-profit groups, funded by philanthropies — but philanthropic funding has often proved to be unreliable in the long run.
Political parties have also done some limited work as intermediaries — but their resources are also limited, and their motivation is not as strong as it once was. Opposition parties that think they have a decent chance of acquiring power are often reluctant to call for more stringent transparency rules. And parties themselves are increasingly heavy consumers of personal information gleaned from public and private sources. In the United States, for example, there is a race between parties and candidates to develop more sophisticated forms of voter profiling so that campaigns can be “micro-targeted” to individuals.[17] It is difficult for political parties and candidates to be critics of public and private surveillance systems when they also depend on those systems for data that is essential to their own electoral survival.
And in many countries, of course, there are ombudsmen and information commissioners who have played a critical role as intermediaries. They have the advantage of more stable forms of funding, and often some legal guarantees about independence from the political executive.[18] But these advantages should not be overstated. Even in wealthy democracies, ombudsmen and information commissioners have suffered from budget cuts as governments emphasize the need for austerity.[19] At the same time, politicians have made a practice of appointing friends or former bureaucrats as commissioners and ombudsmen, with the aim of diluting the de facto independence of those officers, and the actual effect of undermining their legitimacy.[20] And we should remember that the role of the commissioner or ombudsman has typically been one of support to citizens, rather than investigations on their own account. If commissioners became more entrepreneurial in their oversight, problems of funding and independence would become more severe.
This quick survey of current practice gives us a sense of the challenges that lay ahead. In the future, we will rely more heavily on intermediaries to realize the potential of transparency policies. This will require a substantial investment to build up the capabilities of those intermediaries. But here we encounter the core problem: who is prepared to make such an investment? Can we rely on the market to make that investment, given the reality that the benefits associated with transparency are often public goods, which can be enjoyed by many people even though they have not paid anything for them? Can we rely on governments to make that investment, given that it is often against their interest to do so? And finally do philanthropies have the capacity or interest in making the necessary long-run commitments?
I do not have a neat answer to these questions. The subject, which we might call the economics of intermediation, is one that deserves further research. But I do think that this will prove to be a critical question in the coming years. For a long time we have discussed transparency as a matter of individual entitlement. But full realization of the possibilities associated with transparency will depend increasingly on collective capabilities. We will have to find some way of building and maintaining a vibrant community of trusted intermediaries. And the first problem is sorting out who has the interest and capacity to pay for the development of that community.
[1] http://www.freedominfo.org/2014/09/reaching-100-foi-laws-movement-looks-future/ See also a story by the Centre for Law and Democracy. http://www.law- democracy.org/live/100-rti-laws-much-to-celebrate-but-still-a-long-way-to-go/
[2] For a recent summary of research regarding right to information laws, see: Jean-Patrick Villeneuve, “Transparency of Transparency: The Pro-Active Disclosure of the Rules Governing Access to Information as a Gauge of Organisational Cultural Transformation,” Government Information Quarterly: http://dx.doi.org/10.1016/j.giq.2013.1010.1010.
[3] Tony Blair, A Journey: My Political Life (New York: Alfred A. Knopf, 2010), 304.
[4] Francis Fukuyama, “The End of History?,” National Interest 16, no. 3 (1989): 3-16.
[5] An argument can be made that the movement for transparency encompasses more than politics. Marek Bie?czyk examines the influence of the concept in architecture, literature, and social relations as well: Marek Bie?czyk and Benjamin Paloff, Transparency (Champaign, IL: Dalkey Archive Press, 2012). It is closely allied with other values of the modern age: authenticity, rationality, and equality. And perhaps this fact will continue to give power to the concept of transparency notwithstanding the political trends that I discuss here.
[6] I have reviewed some of these recent books: see http://aroberts.us/2014/08/21/book- reviews-does-democracy-work/. And see my comments on Francis Fukuyama’s recent essay, “America in Decay,” at http://aroberts.us/2014/08/25/america-in-decay-is-fukuyama-right/.
[7] Jason Grumet, City of Rivals: Restoring the Glorious Mess of American Democracy (Guilford, CT: Globe Pequot Press), xvii and 109.
[8] Francis Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy (New York: Farrar, Straus and Giroux, 2014), Chapters 34-36.
[9] James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, CT: Yale University Press, 1998), 1.
[10] Similarly, Peter Schuck has recently observed that policymakers struggle to overcome “a severely limited knowledge of the opaque, complex social world that they seek to change” Peter H. Schuck, Why Government Fails So Often: And How It Can Do Better (Princeton, NJ: Princeton University Press, 2014), 27.
[11] For a recent discussion of this topic, see: Adam Tanner, What Stays in Vegas: The World of Personal Data–Lifeblood of Big Business–and the End of Privacy as We Know It (New York: PublicAffairs).
[12] Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, MA: Harvard University Press, 1970).
[13] Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, First Edition. ed. (New York: Metropolitan Books, 2013), Chapter 3.
[14] See, for example, Timothy Garton Ash’s story about his Stasi surveillance file: Timothy Garton Ash, The File: A Personal History (New York: Vintage Books, 1998).
[15] Bruce Gilley, The Right to Rule: How States Win and Lose Legitimacy (New York: Columbia University Press, 2009), 11 et seq.
[16] Pew Research Center, The State of the News Media 2013: Overview (Pew Research Center, 2013 http://stateofthemedia.org/print-chapter/?print_id=14484.
[17] Sasha Issenberg, The Victory Lab: The Secret Science of Winning Campaigns (New York: Crown, 2012).
[18] Sarah Holsen and Martial Pasquier, “Insight on Oversight: The Role of Information Commissioners in the Implementation of Access to Information Policies,” Journal of Information Policy 2 (2012): 214-241.
[19] With regard to Canada, see: Mike Larsen and Kevin Walby, Brokering Access : Power, Politics, and Freedom of Information Process in Canada (Vancouver: UBC Press, 2012), Chapter 2.
[20] For a summary of observations from studies of India, see: Alasdair Roberts, “A Great and Revolutionary Law? The First Four Years of India’s Right to Information Act,” Public Administration Review 70, no. 6 (2010): 925-933, 930. See also Sarah Holsen, “Insight into Oversight: How Information Commissioners Contribute to the Achievement of Access-to- Information Policy Objectives” (University of Lausanne, 2012), 131-133.
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