Print
I.
In 2006, the Sunlight Foundation launched a campaign to get members of Congress to post their daily calendars on the Internet. "The Punch-Clock Campaign" collected pledges from ninety-two candidates for Congress, and one of them was elected. I remember when the project was described to me by one of its developers. She assumed that I would be struck by its brilliance. I was not. It seemed to me that there were too many legitimate reasons why someone might not want his or her "daily official work schedule" available to anyone with an Internet connection. Still, I didn’t challenge her. I was just coming into the "transparency movement." Surely these things would become clearer, so to speak, later on.
In any case, the momentum was on her side. The "transparency movement" was about to achieve an extraordinary victory in the election of Barack Obama. Indeed, practically nobody any longer questions the wisdom in Brandeis’s famous remark--it has become one of the reigning clichés of the transparency movement--that "sunlight is ... the best of disinfectants." Like the decision to go to war in Iraq, transparency has become an unquestionable bipartisan value.
And not just in politics. If health care reform ever emerges from Congress, it is certain to spread nationally a project to require doctors to reveal to an Internet-linked database any financial interests they may have in any drug company or device manufacturer. Type the name of any doctor into the database, and a long list of consulting contracts, stock ownership, and paid speaking arrangements will be returned to you, presumably to help you avoid doctors with too many conflicting loyalties, and to steer you to doctors who have themselves steered clear of conflicts.
How could anyone be against transparency? Its virtues and its utilities seem so crushingly obvious. But I have increasingly come to worry that there is an error at the core of this unquestioned goodness. We are not thinking critically enough about where and when transparency works, and where and when it may lead to confusion, or to worse. And I fear that the inevitable success of this movement--if pursued alone, without any sensitivity to the full complexity of the idea of perfect openness--will inspire not reform, but disgust. The "naked transparency movement," as I will call it here, is not going to inspire change. It will simply push any faith in our political system over the cliff.
The naked transparency movement marries the power of network technology to the radical decline in the cost of collecting, storing, and distributing data. Its aim is to liberate that data, especially government data, so as to enable the public to process it and understand it better, or at least differently.
The most obvious examples of this new responsibility for disclosure are data about the legislative process: the demand, now backed by the White House, that bills be posted to the Internet at least twenty-four hours before they are voted upon, or that video of legislative hearings and floor debate be freed from the proprietary control of one (easily disciplined) entity such as C-SPAN. The most dramatic examples so far are public data from executive agencies: the website Data.gov is just beginning to assemble an extraordinary collection of "high-value datasets" from the executive branch, all available in standard open formats, and free for the taking.
Without a doubt, the vast majority of these transparency projects make sense. In particular, management transparency, which is designed to make the performance of government agencies more measurable, will radically improve how government works. And making government data available for others to build upon has historically produced enormous value--from weather data, which produces more than $800 billion in economic value to the United States, to GPS data, liberated originally by Ronald Reagan, which now allows cell phones to instantly report (among other essential facts) whether Peets or Starbucks is closer.
Regarding a general lack of transparency in government:
Until we are fully briefed on all that is not transparent in our government how can we possibly suggest what should be?
What do we really know about all these secrets? What do we know about how they become secrets....about who decides this...about what criteria they are based on?
From Watergate on we have learned that governnent officials lie to us. Over and over and over and over and over again. And these lies are facilitated by an immense wall of secrecy that pervades so many important policy decisions. Matters that can literally revolve around life and death for example. Matters of war.
Besides, transparency that involves the relationshi ... view full comment
Regarding a general lack of transparency in government:
Until we are fully briefed on all that is not transparent in our government how can we possibly suggest what should be?
What do we really know about all these secrets? What do we know about how they become secrets....about who decides this...about what criteria they are based on?
From Watergate on we have learned that governnent officials lie to us. Over and over and over and over and over again. And these lies are facilitated by an immense wall of secrecy that pervades so many important policy decisions. Matters that can literally revolve around life and death for example. Matters of war.
Besides, transparency that involves the relationship between doctors and drug companies or Congress and Wall Street is virtually meaningless unless local and national news orgnizations make a concerted effort to get this information out to the public. Do any of us honestly imagine most voters will go online to ferret out the informtion themselves?
So, why doesn't the mainstream media pursue this? I read article after article on the healthcare debate here at TNR for example and hardly ever run across the sort of information readily available to The Editors at sites like OpenSecrets.org. Why is that?
But of much greater importance: Until we have an electorate far more politically sophisticated than the millions upon millions of dittoheads we must endure election cycle after election cycle even the stuff that is not secret is minimally effective in changing the way money is for all practical purposes the "legislative process" in Washington.
LL
...there is also little doubt that it is impossible to know whether any particular contribution or contributions brought about a particular vote, or was inspired by a particular vote. Put differently, if there are benign as well as malign contributions, it is impossible to know for any particular contribution which of the two it is.
gw:
Yes, candidate X can receive $200,000 from industry Y; and candidate X can then vote [by and large] for the interests of industry Y; but there is no way to crawl inside the candidate's head and prove that the latter is consciously connected to the former.
Plausable deniability is built right into these transactions. In fact it is built into virtually every human transaction in which one cannot determine or disclose beyond a shadow of a doubt what another's INTENTION was. It depends on how one wants to define what is or is not "plausable". After all, can anyone demonstrate definitively that Scalia, Thomas, Rehnquist etc. voted for Bush in 2000 because, like them, he was a conservative. Oh no, they'll insist, it was simply what an impartial reading of Constitution called for!!
But passing laws to obviate this through "public financing" isn't the way to go here. Instead, progressives should be out in the communities; they must become activists organizing a political movement that will elect Congresswomen and Congressmen who refuse to be bought and paid for in the first place. You don't need transparency in campaign financing if the candidates refuse to play the game, do you?
But again what is the role of the mainstream media in all this? Do not these news organs receive enormous sums of money through advertising FROM THE VERY SAME PEOPLE who buy legislation in Congress? What about the lack of transparency here?
LL:
In the context of public health, where doctors are forced to reveal any connection with industry, I cannot begin to imagine what that solution would look like. The citizenry is not remotely willing to fund publicly the research necessary to support drug development today.
george:
If laws prohibit doctors from accepting gratuities from those who would profit by drugs or sevices the doctors pushed on patients what would be the need for transparency? Instead, we would need an efficient and effective regulatory agency to make certain this sort of thing did not happen at all. To link a patient's health to a profitable transaction for Drug Company Z, is simply outrageous. Why would we need to focus on full disclosure when there should be nothiong to disclose in the first place if these exchanges were prohibited and the laws were vigorously enforced?
george walton
j
I am one of the “whistleblowers” (Jonathan Leo) that is mentioned in this article. I have read the section several times where Lawrence Lessig mentions my disagreement with JAMA and it is still unclear to me what exactly my case is supposed to illustrate in his eyes. Is the disagreement an example of too much transparency, or accusations without facts? Or is the problem with JAMA’s original call for author transparency, or is it of their short–lived policy that if someone wants to write about issues in the public record having to do with JAMA that they first have to get JAMA’s approval?
Anyway, I think I could shed some light on the events he discusses and what they might ... view full comment
I am one of the “whistleblowers” (Jonathan Leo) that is mentioned in this article. I have read the section several times where Lawrence Lessig mentions my disagreement with JAMA and it is still unclear to me what exactly my case is supposed to illustrate in his eyes. Is the disagreement an example of too much transparency, or accusations without facts? Or is the problem with JAMA’s original call for author transparency, or is it of their short–lived policy that if someone wants to write about issues in the public record having to do with JAMA that they first have to get JAMA’s approval?
Anyway, I think I could shed some light on the events he discusses and what they might mean for transparency. First, as Lessig mentions, the original call for transparency comes from the JAMA editors themselves who have established policies for their authors to abide by. Authors are supposed to let readers know of their financial conflicts – pretty simple. If he feels this transparency is problematic then he is going against the tide when it comes to medicine, and I think more discussion on his part is warranted. The trend in medicine, as put forth by NIH, Universities, and Journal Editors is to let readers know about the financial conflicts of their researchers and authors. If he does not agree with this idea then his disagreements are with much bigger fish then me.
Following the publication of a JAMA article and our letter about the article, which JAMA published, we did a Google search on the study’s lead author. This took about 30 seconds and it revealed an undisclosed conflict. An eventual email to the author, who graciously confirmed that he had forgotten to mention one of the conflicts, took about five minutes. Thus, our letter to the BMJ, which JAMA did not approve of, discussed an article and documents in the public record which were freely available to anyone with a computer. We are not talking Woodburn and Bernstein here. There were no secret documents or unnamed sources. Likewise, there was little need for much of an “investigation” since no one was denying anything. Lessig closes off his discussion of the JAMA case by talking about “unfair complaints” and a “mistaken accusation.” No one, including JAMA and Lessig, has ever pointed out any errors of fact when it came to what I wrote about. And if we had been wrong then the normal course of scholarly give and take could have rectified any errors. But, as JAMA has put in writing, their main disagreement with me was not facts, but that in their eyes I was not allowed to write about JAMA without their approval. Does Lessig agree with this idea? If he does then his argument is not about too much transparency but is with current notions of free speech.
I really do not look at myself as a “whistleblower” that went public or as someone who needed protection. Rather, I look at myself as someone who lives in a country that provides certain freedoms, one of which is the ability to write about issues in the public record. And since my case, there have been several examples of reporters and other parties writing about undisclosed conflicts. I am not sure how a journal or any other organization can stop reporters or anyone else from writing about issues that are in the public record. If you would like to read my side of the story here is a recently published article: http://www.springerlink.com/content/31320701056467l5/
Also, if you would like to read an article about much more problematic transparency issues in medicine here is a recently published paper: http://www.plosmedicine.org/article/info:doi%2F10.1371%2Fjournal.pmed.10...
-Jonathan Leo
Whether to prefer transparency or privacy depends completely on context. The main point of Reagan era deregulation was that reformers just are not very good at making well-considered law. With all the best intentions, Congress imposes convoluted ill-thought through mandates (just try reading ANY bill), forcing people at great cost to produce, say, disclosure-oriented busy-work—which later turns out to be of no use to anything. The large purposes of the securities laws, for example—which in broad principle were clearly about requiring disclosure in investment situations, and averting speculation and fraud in the markets—were lost in the clutter of detailed regulation around the one op ... view full comment
Whether to prefer transparency or privacy depends completely on context. The main point of Reagan era deregulation was that reformers just are not very good at making well-considered law. With all the best intentions, Congress imposes convoluted ill-thought through mandates (just try reading ANY bill), forcing people at great cost to produce, say, disclosure-oriented busy-work—which later turns out to be of no use to anything. The large purposes of the securities laws, for example—which in broad principle were clearly about requiring disclosure in investment situations, and averting speculation and fraud in the markets—were lost in the clutter of detailed regulation around the one opacity problem legislators were aware of in the 30's—public companies. To have concluded that every new financial innovation, including the innovation of actually manufacturing new banks out of whole cloth by securitizing and laying off all their credit risk over and over andn over again, could escape ALL scrutiny, while laborious attention was still paid to humdrum routine of public company disclosure, was obviously ridiculous, possibly fraudulent and corrupt. As yet another for instance, I defy anyone to make heads or tails out of practically anything the Department of Education does; its website brims with meaningless, paralyzing, unreadable junk. Ironically, Mr. Lessig, while careful never to say anything that could ever be construed as "right-wing," in fact makes precisely the Reagan deregulatory point. In business, errors and bad ideas that looked good at first blush, are relatively rapidly corrected, simply because it doesn't take a bill in Congress to get it done. Meanwhile, we produce ever more lawyers to engage in ridiculous paperwork for clients for cash. It's a living, I guess.