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Putting corporate security before national security

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

07.22.02

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Americans have been asked to shoulder an enormous burden and responsibility in this nationís war on terrorism. They are providing the sons and daughters, resources and support for military and covert operations around the globe. They are sacrificing rights and freedoms.

Right now, legislation on a fast track before Congress will ask American taxpayers to put up more than $40 billion to establish and fund a Department of Homeland Security. It is the most massive and expensive reorganization of the federal government in six decades, folding all or parts of 22 departments and agencies into one.

So, the White House and Congress will be asking private citizens to take on even more responsibilities and sacrifice even more. Not so private businesses, which in effect the legislation would bribe to enlist in the war on terrorism.

At a time when the public and elected officials alike are clamoring for more disclosure and accountability in the corporate world, a little-noted provision in the Department of Homeland Security legislation could make corporate dealings even more obscure and less accountable — or worse.

The administration and the sponsors in Congress are insisting on "information-sharing" language for the legislation that would allow the new department to exempt businesses from the legal requirements of the Freedom of Information Act when voluntarily submitting "critical infrastructure information" to the department. That is despite deep concerns from some members of Congress, public interest and press groups.

The FOIA exemption, pushed by the technology industry, utilities, financial services firms, manufacturers and others, would free businesses from the disclosure requirements of local and state laws — and grant them immunity from civil liability for violations of securities, tax, civil rights, environmental, labor, consumer protection, health and safety laws that might be revealed in the information they provide.

More importantly, it would deny to the public crucial information about hazardous materials, chemical releases, toxic spills and other threats to health and safety — as well as vulnerabilities to terrorism and sabotage. There would be a real risk that critical infrastructure vulnerabilities would be worse if the information about how private businesses are running nuclear and chemical plants, refineries, water systems and other facilities is hidden from public scrutiny.

In other words, this exemption would not be your ordinary loophole but rather a standing invitation for companies with something to hide to label incriminating material as "critical infrastructure information," submit it to the new department and thus put it beyond the reach of the public, the press, the Congress and the courts.

There is a long list of reasons why writing this exemption into the Homeland Security legislation is no way for the government to do business.

First among them is the fact that such an exemption is unnecessary, as administration officials have conceded. The FOIA already exempts from disclosure real national security information as well as trade secrets and confidential business information. The courts are consistently deferential to such claims. And administration officials, as well as some in the private sector, say the exemption is not necessary.

Massive amounts of government information already have been withdrawn from the public and press in the last few months. Proposals for even more denial of access, especially if the reason given is for national security, should be looked at closely. For example, this proposal is very similar to legislation to exempt critical infrastructure information introduced in Congress long before Sept. 11 and the war on terrorism.

The federal government has been granted expanded authority to wiretap telephones, eavesdrop on e-mail traffic, monitor Web site visits, mine private databases and check up on what Americans are reading at the library. In addition, the Justice Department has proposed a citizen informant project in which a million letter carriers, meter readers, cable installers and others who routinely enter our homes would be trained to spot and report activity they consider suspicious.

There you have it. Private citizens are being told to be content with less privacy and access, but private businesses are being offered greater privacy and less accountability. This generous gesture toward the private sector is most ironic coming in the wake of a series of unsettling revelations about corporate abuses that have cost the economy and millions of Americans dearly. Granting private businesses more secrecy and immunity could cost our security dearly.

Certainly, there are secrets that must be kept — information that would indeed harm the U.S. and help its enemies if disclosed. But truly dangerous information already is protected from disclosure.

Without public access to the kind of information that would be exempted in this proposal, businesses, in effect, will have their own Private Sector Security Act that creates an environment where there is no accountability for mistakes and misdeeds, no public pressure to address critical infrastructure vulnerabilities, and no informed discourse on policies that impact dramatically on public life.

That means that critical vulnerabilities would not be identified, the solutions proposed would not be known, and any efforts to fix them would go unchecked.

If Congress approves this exemption, it will have abdicated its oversight responsibilities and embraced the idea that the private sector must be given a pass on compliance with access laws to encourage it to do its part in the war on terrorism. More importantly, it will have diminished the role of American citizens as full partners in the democratic process.

In the end, too much secrecy and too little access will corrode the compact of trust and partnership between the public and its leaders that has been and always will be the most essential component of the homeland's security.

Recent Ombudsman columns

  • Is the press guilty of treason?
    Many regard robust exercise of First Amendment rights by either the press or the people as a dangerous problem in the fight against terrorism.08.08.02

  • The Supreme Court's 'secondary' thoughts
    While Alameda Books ruling appears to bolster efforts to regulate adult businesses, several justices express concern that evolving secondary-effects doctrine threatens First Amendment.07.30.02

  • Congress must champion access
    Government information must be branded as crucial to democracy, to responsible governance and to freedom.07.11.02

  • Denial of access shushes the democratic dialogue
    Some restrictions are warranted to guard against attack, but as government demands more information of Americans, it's asking Americans to demand less information from government.12.12.01

  • The more we know, the more secure we are
    It defies reason that we'd rush to limit information that has no real bearing on national security or military operations.12.07.01

Related

Open-government advocates leery of homeland security bill
Senate to vote on amendment that would strip measure of language exempting advisory committees from public-disclosure rules.  11.18.02

Rumsfeld urges crackdown on leaks to press
Defense secretary writes memo a week after The New York Times reports on classified document outlining aspects of 'concept' for U.S. war against Iraq.  07.17.02

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