Why the panic over online information?

Monday, December 13, 1999

Americans have always placed a premium on their privacy and constantly fret about the possibility of personal information falling into the wrong hands. But the possibility of such information falling into the wrong medium — namely the Internet — makes many of us downright apoplectic.

We seem to have grown more resigned to the idea of personal facts stored in government and corporate files. But any move to post those same facts on the Internet, or a Web page, panics otherwise sane and sober people — such as judges and members of Congress. When confronted with that possibility, they inevitably begin to jabber excitedly about terrorists, murderers and the unimaginable horrors that electronic access might provoke.

Two recent examples of this reaction:

  • A federal judge unilaterally and summarily halted plans by an online news organization to post on the Internet information about judges' financial holdings and dealings.

  • Privacy advocates sounded a national alarm after learning that the Social Security numbers of 4,500 military officers were available on the Web site of Glen L. Roberts.

  • What is it about information in electronic form that makes it appear so ominous and threatening, even when the information is available in other forms?

    In the case of the military SSNs, it's perfectly understandable why those officers whose numbers were revealed would be concerned. But those numbers have been available to the public for years because the Congressional Record has been publishing them; in fact, that was Roberts' source for the numbers. In the case of the judges' financial reports, that information has been required by federal law and has been routinely available on paper for two decades.

    Yet making that information available on the Internet put the officers in fear for their identities and the judges in fear for their lives.

    There is no security in obscurity, says Declan McCullagh of Wired News, but paper records just seem more benign. Electronic records seem more sinister. Why? It may be because electronic records can be accessed and assembled more quickly, manipulated more easily, and merged with other information more readily. It may be the idea of unknown people in unknown numbers pawing through our privacy that is uniquely disquieting.

    Whatever the differences between records residing in virtuality and those held in real form, there is no question that online records get people upset.

    In these latest instances, the military officers whose identities were compromised have more-legitimate arguments for protecting their SSNs than the judges do for keeping off the Internet information having to do with their financial dealings.

    Yet, when he learned that APBNews.com had paid $2,500 in copying fees and was preparing to scan 12,500 pages of records for posting on its Web site, U.S. District Judge William Zloch decided that information could put the lives of his colleagues in danger.

    Without consulting with other judges, without issuing an explanation, and without announcing his action publicly, Judge Zloch picked up a telephone and put a moratorium on the release of financial disclosure forms of the nation's 1,600 federal judges. In addition to halting the release to APBNews.com, Zloch's action put on hold the requests of 40 other news organizations.

    Zloch and his colleagues stand by their judicial temerity, despite protests from members of Congress, legal scholars, journalists and access advocates. The 15 members of the U.S. Judicial Conference's finance committee, which is headed by Zloch, met in secret for five hours in Washington on Dec. 10. They emerged with nothing to say, leaving it to a spokesman for the judicial conference to report that the moratorium would continue.

    By federal law, these records have been publicly available since 1979. Judges, who hold lifetime tenures in public office, have to report on their estimated worth, stock holdings, gifts, speech payments and family assets, just like the president, Cabinet officers, senior administration officials, and members of Congress. Addresses and telephone numbers are not on these records.

    The elected and appointed officials generally make this information available online. Unlike those officials, however, judges require special hurdles for those seeking information about their finances. Requesters must make the request in writing and list their occupations. Judges get to review the requests; if one thinks a requester is a security risk, the file can be edited. Requesters have to view and copy the records in Washington, D.C.

    Is it all that important to have financial disclosure records for judges available online? Of course it is.

    Plaintiffs, defendants, lawyers, scholars and others all have valid reasons for accessing such information without having to identify themselves to judges they may be appearing before. In addition, journalists and public interest groups have produced reports showing hundreds of instances of judges hearing cases in which they had a conflict of interest. Having the finance records online would make such reports more frequent and accurate.

    Even so, the judges won't relent without a fight. Their unease has as much to do with the Internet as it does the information. For them, as with the rest of us, the Internet and electronic records test our commitment to the openness that gives a democratic culture its vitality and appeal.

    It remains to be seen whether that commitment will be able to accommodate the new realities as well as the old principles of an open society.

    Paul McMasters may be contacted at pmcmasters@freedomforum.org.