/ HAS MAGAZINE
Democratic transparency in the era of fake news
Jean-Philippe Foegle
Whistleblower and PhD student in public law
Transparency is a central notion in democracies, although its application can lead to various theoretical and practical problems, including abuse, instrumentalisation and issues of secrecy, as Jean-Philippe Foegle argues.

In dialogue with Dystopia

A short film by

Sans Raison Production

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In an era of fake news, and within the current global context—in which governments are suffering from an increasing erosion of legitimacy—the call for transparency has become more and more pressing. Transparency, however, remains a problematic concept. Once it is elevated to an absolute necessity, it can enable the manipulation of the public arena. In this respect, limiting the risks related to the misuse of transparency necessarily leads us to question the power and legitimacy of the key players of transparency, in order to determine who among them is best equipped to establish the much-needed balance between transparency and secrecy.

Dystopia – Sans Raison Production – 2020

Because it is such an essential safeguard against government abuse, transparency is a recurring theme within social discourse, despite being problematic. In an era of manipulation of news and information, democracy’s balance of power is more than ever reliant on the power struggle between those who know (insiders) and those who lack the power conferred by knowledge (outsiders). As noted by Frank Pasquale, the misuse of secrecy creates an imbalance in the power relationship between the governors and the governed: “… the party who is invisible and who can thus observe everyone else without their knowing, holds an enormous strategic advantage.”1 On the other hand, it seems quite clear that, when pushed to its paroxysm, transparency bears the seeds of authoritarianism. As Guy Carcassonne phrased it, “[transparency] tends to confuse means and ends and, in its absolutist form, can bear a stronger resemblance to totalitarianism than it can to democracy.”2

In other words, it seems obvious that constitutional democracies cannot indulge in secrecy, yet it also appears they cannot exist without it. This implies an urgency to set forth procedures which establish a satisfactory equilibrium between the need for secrecy and the demand for transparency. As crucial elements in stimulating the public debate, procedures regarding the right and access to both public and private information contribute to the establishment and welfare of what Yale professor Jack Balkin calls democratic information politics,3 meaning policies that limit the lack of transparency surrounding government activity while ensuring that the State collects only the minimum necessary amount of personal data from its citizens.

The one who is invisible, and therefore can see everything that others do without their being aware of it, has an enormous strategic advantage.

Frank PASQUALE
The Black Box Society: The Secret Algorithms That Control Money and Information

Harvard University Press, 2015.

Far from the ambition of eliminating secrecy entirely, transparency appears as an instrumental value in achieving a balance between transparency and secrecy in order to improve the efficiency of public action and foster citizens’ self-determination. However, the necessity for both can mean that, in some cases, secrecy must prevail over transparency, particularly when maintaining secrecy ensures the privacy of vulnerable individuals, as is the case with patient confidentiality.

Envisioning transparency as an end in itself is therefore in no way innocuous, and can—when misused or used to ends other than the public interest—have damaging effects on the proper functioning of the public sphere, and threaten democracy as a whole. In a network society in which information has become a power resource and a political lever, the call for transparency is likely to facilitate, in many hypothetical scenarios, the manipulation of information to ends other than the public interest, and can sabotage public debate.

Seeking to develop a culture of transparency that would truthfully and effectively contribute to preserving the public interest would require us to critically examine the roles played by the key actors of transparency, and question their legitimacy in deciding what should or should not be published. Within a network society, in which information has become a strategic resource, it is no easy task to determine which democratic institution is in a position to legitimately establish a just balance between secrecy and transparency.

The obsession with secrecy is of course inacceptable, but so is the dogma of openness. It tends to mix the ends with the means, and in its absolutism it resembles more totalitarianism than democracy.

Guy CARCASSONNE
The Trouble with Openness 2001

The instrumentalization of transparency and the risk of manipulation of the public sphere

Quite often, the procedures through which citizens gain access to public and private information only offer—much like Magritte’s pipe—a partial and biased view of the government’s activities. The long-standing and extensive debates on transparency in the United States are particularly eloquent and informative on this matter.

As rightly pointed out by Mark Fenster,4 our view on transparency is based on an ideal type of communication context which implies the existence of both a predetermined significance for each piece of information—one that is compiled, stocked, and published—and a public that is prepared to understand and grasp the meaning of the information it is presented with. However, this dominant “cybernetic” conception of transparency, which suggests that information follows a linear trajectory from an institution to an audience, is erroneous. Information that is communicated for the purpose of transparency is not neutral, since those who disclose it do not merely replicate preexisting information that is waiting to be made public. By making choices about what should be divulged, and the ways in which it should be divulged, transparency procedures carry a message and a meaning determined by a series of human choices. Understood in this sense, transparency is eminently political, which means it can be instrumentalized by political stakeholders.

This kind of instrumentalization is particularly easy to achieve now, with rising digital networks facilitating massive document leakage. Because accessing information is often time-consuming and costly, and because the existing procedures usually only offer partial access to the information, document leaks on the internet have become the only way for the general public to access information that can actually advance the public interest debate, but their misuse comes with potentially damaging effects.

We are indeed living in what Castells calls “the network society,” that is, a society in which the exchange of information is no longer vertical—radiating from the press corps to the public—but rather horizontal, with private citizens exchanging information through the Internet.5 Staggering amounts of information can now be exchanged regardless of geographical or political borders, and this implies a significant change in the configuration of data leaks, which have become more massive and much more difficult to repair or control. On the Internet, the fact that everything can be replicated and there is no “erase button” makes it even more difficult for a source to assess the effects that sharing information on a news leak platform such as Wikileaks could have. We could say that a number of news leaks disclosing information that was liable to cause damage to the public interest or jeopardize people’s privacy published on these platforms have been unfavorable, given the lack of public interest in the disclosed information and the sizeable damage caused to those whose personal data had been leaked.

More broadly, the difficulty to identifying leakers and what motivates them to leak information onto these kinds of platforms has led to an increase in the manipulation of the public sphere by hackers working for foreign governments and high officials of intelligence services eager to mold public opinion in their favor.6 In fine, this can lead to a public sphere that is saturated with information that is either erroneous or opaque, and which impairs a fruitful public debate. In this regard, let us underline that while anonymous leakers can indeed be motivated by noble causes, they can also—and often do—use these causes as a means to defend private interests. As demonstrated in Stephen Hess’ famous study, a leak can just as well be driven by unscrupulous motives, such as influencing an ongoing trial (Trial Balloon Leak), seeking retaliation for personal grievances (Animus Leak), or even flattering one’s own ego (Ego Leak).7

Dystopia – Sans Raison Production – 2020

Finally, as argued by David Pozen, financial stakeholders can use transparency as a “reactionary” tool. Although transparency laws such as the North-American Freedom of Information Act (1966) were initially conceived as a way of holding the executive powers accountable, they have essentially focused on legislating access to public information, at the expense of regulating information held by private corporations. Over the past few years in which the freedom of information laws have been applied, there has been an “ideological drift” of transparency.8 Initially created as a means of holding the ruling class accountable, transparency laws have increasingly been used by financial players who are against regulation as a tool for drawing on informational resources detained by government authorities, forcing them to disclose any data that presents monetary value, while on their part refusing to submit to any equivalent transparency obligation.

Transparency gatekeepers and democratic legitimacy: solving the quadrature of the circle?

Identifying the risks linked to the misuse of transparency necessarily leads us to question the powers and legitimacy of the stakeholders of transparency, in order to determine which among them are best fit to achieve the necessary balance between transparency and secrecy.

The quest for such a balance could very well be attributed to a judge. In Europe, this seems to be the most logical option, given that, in light of the recent Magyar Helsinki judgement rendered by the European Court for Human Rights,9  the judges of Strasbourg largely expanded the rights to access public information regarding matters that “concern the public to an extent that may legitimately awaken the interest, attention or concern of citizens,” including matters that “… are likely to create strong controversy, refer to an important social issue or concern a problem which citizens would benefit from being informed of.”10 For many years now, the European Court for Human Rights has demanded that any judge who is brought to examine confidential or classified information may, when relevant, be authorized to declassify information whose importance is such that its disclosure should take precedence over any other obligation to secrecy.11

Dystopia – Sans Raison Production – 2020

Judges who carry this burden will nevertheless face a major obstacle, named the “counter-majoritarian difficulty.” They face the argument that judicial review is illegitimate because it exerts control over the will of the majority rather than in its name. But in a time of growing security legislation, and when the national security imperative is increasingly used in order to keep certain information secret, it seems unlikely that a judge would frontally oppose the executive branch by demanding it disclose information that could potentially threaten national security.

Such a burden, then, could be placed on the shoulders of whistleblowers, who are often the prime witnesses to violations of public interest occurring in public and private organizations. However, this would mean burdening vulnerable individuals with the task of determining the balance between secrecy and public interest and that of deciding what should be divulged and what kept secret, without having a global vision of what is being denounced due to their partial access to information. One solution—although insufficient—could be to incorporate the “Tshwane Principles” into internal laws regarding national security and the right to information. Principle 43 of the Tshwane Principles states that “the law should provide public personnel a public interest defense” even when they “may be subject to criminal or civil proceedings, or administrative sanctions, relating to their having made a disclosure of information not otherwise protected under these Principles,” provided that “the public interest in disclosure of the information in question outweighs the public interest in non-disclosure.” Articulated following a principle of rationalizing whistleblowing common to many legislations, this public interest defense would ultimately play a subsidiary role, intervening only when internal and external avenues for alerting competent regulatory authorities have failed. Above all, the whistleblower must feel certain that the scope of the disclosure does not exceed what is necessary for it to be useful, and that the disclosure is in the public interest of the general population.

We could just as naturally rely on journalists to take on the responsibility of establishing a satisfactory balance between secrecy and the public interest. As noted by Bob Woodward in a seminar given at Yale University,12 it is the journalist’s duty to act as a gatekeeper, capable of evaluating the importance of a publication not only with respect to its relevance in terms of public interest, but also to the damage the publication could cause to national security. In this sense, Wikileaks played a useful role in revealing highly protected secrets, but erred in publishing documents without exercising due diligence in determining which elements were useful to publish and which were not. However, the complexity of the relationships between journalists and whistleblowing platforms has increased the risk for collateral or private censorship. As Yochai Benkler states,13 journalists have become warier of whistleblowers behind massive leaks because in many cases the leaks are of such a magnitude that they represent a clear liability for world leaders who, short of being able to prevent or stop them, will do everything they can to discredit them. As a result, traditional media have often been brought to renounce publishing any information sourced from whistleblowing platforms, whether out of fear of reprisal or because it sees Wikileaks as its direct competition.

Finally, although it is possible to rely on inquiry commissions who detain legitimate knowledge of secrets to achieve this balance, it seems unlikely that they can effectively halt secrecy abuse, particularly in the case of secrets withheld on the grounds of preserving national security and foreign relations. As Rahul Sagar states,14 granting the knowledge of government-related secrets to a few “chosen ones” will not dissipate the concerns and fears of the public regarding the misuse of secrecy. On the contrary, these selected members would themselves become the object of suspicion, given that their monitoring role is itself hidden from the public view.

This brief overview of possible solutions to the problem of achieving an equilibrium between secrecy and transparency demonstrates the difficulty in squaring the circle on this matter. This difficulty, far from being an unsurmountable obstacle, constitutes a source of controversy that can nourish public debate and stimulate democracy. However, we have yet to establish the terms of the debate in a way that ensures that neither secrecy nor transparency is erected as an absolute, to the rank of the people’s new opium.

Dystopia – Short film – Sans Raison Production – 2020

References

1 Pasquale, Frank. The Black Box Society: The Secret Algorithms that Control Money and Information. Harvard University Press, 2015.

2 Carcassonne, Guy. «Le trouble de la transparence,» in Pouvoirs 2/2001: 17-23.

3 Balkin, Jack M. “The first amendment is an information policy,” in Hofstra Law Review 41 (2012), 1.

4 Fenster, Mark. “The opacity of transparency,” in Iowa Law Review 91 (2005): 885.

5 McCurdy, Patrick. “From the Pentagon papers to Cablegate: how the network society has changed leaking,” in Beyond WikiLeaks. Palgrave Macmillan, London: 2013. 123-145.

6 Pozen, David E. “The leaky Leviathan: Why the government condemns and condones unlawful disclosures of information,” in Harvard Law Review 127 (2013): 512.

7 Hess, Stephen. The government/press connection: Press officers and their offices, Vol. 2. Brookings Institution Press, 2010.

 8 Pozen, David E. “Transparency’s Ideological Drift,”in Yale Law Journal 128 (2018): 100.

9 Cour Europeenne Des Droits De L’Homme, Grande Chambre, 8 Novembre 2016, Affaire Magyar Helsinki Bizottsàg contre Hongrie, Requete n° 18030/11.

10 Idem, §161 et 162.

11 Cour Europeenne Des Droits De L’Homme, 3e Section, 8 Janvier 2013, Bucur et Toma contre Roumanie, Requete n° 40238/02, §102.

12 Organized by the members of the Information Society Project (Rebecca Crootof, Jean-Philippe Foegle), joined by the Center for Global Legal Challenges (Iulia Padeanu, Oona Hataway), with the support of the Oscar M. Ruebhausen Fund, the conference “The International Law of Whistleblowers” gathered many experts on the matter, both from civil society (Anna Myers, Tom Devine, Sandra Coliver) and from academia (Susan McGregor, Patrick Weil , Patrick McCurdy). In addition, an interview with a historical figure in American investigative journalism (Bob Woodward) was conducted by Emily Bazelon, staff writer for the New York Times and Senior research fellow at Yale Law School.

13 Benkler, Yochai. “A free irresponsible press: Wikileaks and the battle over the soul of the networked fourth estate,” in Harvard Civil Rights-Civil Liberties Law Review 46 (2011): 311.

14 Sagar, Rahul. Secrets and leaks: the dilemma of state secrecy. Princeton University Press, 2016.

Jean-Philippe Foegle is a PhD student in public law at the University of Nanterre and a lawyer in charge of advocacy at the French-based NGO Maison des Lanceurs d’Alerte (the House of Whistleblowers). His thesis addresses the legal frameworks of whistleblowing in comparative law (United States, France, United Kingdom).

Sans Raison is an audiovisual production studio created by Romain Rodrigues and Jennifer Gold in 2017. It specializes in fiction, experimental film, music video and live performance.

Dystopia is the first short film produced by Sans Raison and directed in 2020.

Far from everything, a nomadic family is looking for the perfect place. As the atoms detach from the nucleus, the mother makes an encounter that could definitely change the destiny of all.

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Truth and Belief
JUNE 2021
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Jean-Philippe Foegle is a PhD student in public law at the University of Nanterre and a lawyer in charge of advocacy at the French-based NGO Maison des Lanceurs d’Alerte (the House of Whistleblowers). His thesis addresses the legal frameworks of whistleblowing in comparative law (United States, France, United Kingdom).

Sans Raison is an audiovisual production studio created by Romain Rodrigues and Jennifer Gold in 2017. It specializes in fiction, experimental film, music video and live performance.

Dystopia is the first short film produced by Sans Raison and directed in 2020.

Far from everything, a nomadic family is looking for the perfect place. As the atoms detach from the nucleus, the mother makes an encounter that could definitely change the destiny of all.

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