The debate over records computerization endures even as government continues the shift toward a paperless regime
The recent controversy surrounding WikiLeaks' disclosure of U.S. diplomatic cables has once again stirred the debate about how technology and computers affect - for better or for worse - the right to receive and distribute government information.
But, as anyone who has tracked the legal, academic and societal evolution of the issue knows, such debates have raged for decades. Moreover, the controversy continues to revolve around similar themes, such as personal privacy protection, and the ability to amass and disseminate large amounts of information and data accurately and securely.
Many of these same concerns can be traced back to Samuel D. Warren and Louis D. Brandeis' foundational 1890 Harvard Law Review article arguing for a legally recognized "right to privacy" in light of technological advances that threatened the "right to be let alone," such as instant photography - a seemingly quaint conception of a technological threat these days.
And such anxieties about the government's collection, use and disclosure of information have shaped the public's legal rights of access to government records. They served, for example, as the impetus behind such federal legislation as the Privacy Act of 1974, a law that, among other things, prevents the disclosure of certain electronic records that are retrievable by individual name or other personally identifying criteria without the consent of the record's subject.
In passing the act, Congress found that "the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use or dissemination of personal information."
Purported personal privacy concerns were also at the heart of the landmark 1989 U.S. Supreme Court decision in U.S. Department of Justice v. Reporters Committee for Freedom of the Press; a case in which a unanimous court held that the personal privacy rights of alleged organized crime members trumped the public's right of access to computerized FBI "rap sheets" that compiled an individual's nationwide criminal history into a single file. In the court's words, "there is a vast difference between public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single file."
WikiLeaks stands as the latest in a long line of technological platforms to emerge that have raised similar concerns about data collection, security and dissemination. Lawmakers and the Obama administration are seeking ways to prevent and punish unauthorized data disclosures through various legal means. Perhaps now more than ever the relative ease of gathering massive amounts of data and placing it online for literally everyone in the world to freely see will, at the least, linger in the subconscious of government information policy officials. Invariably they will ponder questions like "what if these kinds of records wind up on a site like WikiLeaks?" before deciding to compile, share or publicly release government information.
Yet governments continue to adopt electronic records collection and dissemination practices that allow for cheaper, faster and greater distribution of information. For example, President Barack Obama's December 2009 Open Government Directive requires federal agencies to develop plans to place greater amounts of public information online. Additionally, jurisdictions across the country are adopting policies regarding electronic, public access to court records. It appears these opposing …