Published: March 01, 2000
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Open records
Fear of the Internet leads to clampdown
Advocates of open records fight legislation that flame-fanning
privacy activists push and fearful lawmakers pass as records become ‘too
available’ online
By Kevin M. Goldberg
By my count, 19 bills that would affect access to government information
were introduced in the first session of the 106th Congress.
Most try to restrict access to government information due to baseless
fears that the Internet will facilitate the use of that information for
harmful purposes. However, in the rush to protect the public from itself,
Congress would shortchange the public on the benefits that can accrue from
these records.
A prime example is the Chemical Safety Information, Site Security, and
Fuels Regulatory Relief Act. ASNE opposed this bill and testified against
it before a House subcommittee.
Despite our best efforts, the bill eventually became a law stating that
information required to be filed with the EPA concerning the worst case
scenario in the event of a chemical accident would not be available to
the public for the first year after the bill was enacted — with the possibility
of extending that moratorium.
So, in the end, information affecting the health and safety of local
communities near chemical plants is unavailable to the people living in
them. Why? Because Congress could not find a way to address its fear that
the chemical information would be put on the Internet and accessed by terrorists
worldwide.
Never mind that, while similar information has been available for years,
there has not been one documented case of a terrorist attack on a chemical
plant in the United States.
Similar legislation was passed that applied to motor vehicle records.
Language tucked into the appropriations bill for the Department of Transportation
mandates that federal highway funds be withheld from any state that sells
or distributes driver’s license information or motor vehicle records without
the written consent of each person involved.
This law wreaks havoc with the many useful purposes for such information.
It is used every day by the press, private investigators, people seeking
long-lost relatives, parents looking up the records of school bus drivers,
and women and men seeking child support payments owed by “deadbeat” spouses.
These beneficial uses fell victim to congressional hysteria that the information
is “too accessible” in the age of computers and the Internet, creating
a playground for stalkers and others who would misuse it.
These bills and others —such as the eight variations of a bill that
would restrict access to all forms of medical information in the name of
patient’s rights — are the product of isolated incidents sparking a flame
of reaction.
This flame was fanned by hype generated in all forms of the media. Riding
the wave of public outcry over the most egregious examples of bad use of
information, Congress is able to restrict the public’s clear democratic
right to monitor the affairs of government firsthand. A culture of fear
has been created in which people do not embrace public information, but
scorn it. This campaign season presents the potential for even more rhetoric
as pandering lawmakers play on these fears for political gain.
This attack on the Internet for society’s own ills is the opposite of
everything free speech stands for. Congress can’t be allowed to scapegoat
the Internet as the facilitator of evil; the public cannot be allowed to
naively believe that the Internet allows people to access records that
would otherwise be hidden from public view. There is no special danger
created by allowing access to public records online. It simply saves time,
money and resources for all involved.
We must educate the public about the positive benefits of access to
information. We must challenge the Congress to favor open government.
An interesting development has occurred recently on this front, one
that could shape the debate for years to come. Sen. Herbert Kohl, D-Wis.,
has opened that door by introducing the Privacy Protection Study Commission
Act of 1999 (S. 1901), which would create a nine-member, congressionally
appointed commission that would be charged with reviewing all aspects of
FOIA, right down to whether it still works as intended. If the composition
of this committee has people who are willing to fight for access to government
information, it would go a long way toward making FOIA a stronger tool
for years to come. If composed of privacy advocates and those who fear
the electronic age, we could be worse off than if FOIA had never passed.
Goldberg is a lawyer with Cohn & Marks, Washington, and provides
legal counsel to ASNE.
