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FOI Columns
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November-December, 2001

FOI faces challenge in frightened nation

"Courage,” a colleague noted the other day, is a word often being used in the days and weeks following the horrific terrorist attacks on New York City and Washington,D.C.

Courage, it seems, is defined by some political leaders as our willingness to surrender hard-fought liberties in exchange for some measure of security, perceived or otherwise.

The horrific Sept. 11 terrorist attacks on the World Trade Center and the Pentagon sent us all reeling. Like many others, my emotions range from feelings of rage at the hijackers to unspeakable grief for the thousands who were murdered. Yet I can’t stop thinking about the potential for disaster if we make policy by acting on these overwhelming emotions. Now, more than ever, we need time to reflect on the consequences of our actions – before, not after, we take action.

A quote from Minority Leader Richard A. Gephardt (D-Mo.), keeps running through my mind: “We’re in a new world where we have to rebalance freedom and security,” Gephardt said. “We’re not going to have all the openness and freedom we have had.”

Perhaps. But in following the comments of our elected and appointed officials in Washington, one would believe that we have nothing to protect us from terrorists but classification, secrecy and loss of civil liberties. That’s not courageous at all, but a surrender of precious, unique American freedoms, all in the name of global law enforcement.

Targeting FOI
To remain independent, to stand above the fray and question government in times of crisis, is courageous. To counter the populist wellspring unleashing itself as a nation girds for war, is courageous. A Pew Center poll a week after the bombings showed that more than 70 percent of the American people were willing to relinquish at least part of their right to privacy for greater security.

The politicos, keen observers of such poll data, are eager to take a tough stand against terrorists. Law professors, journalists, historians, authors – I have heard even the most insistent First Amendment advocates backpedal a bit when faced with such overwhelming pressure to surrender our civil liberties.

There is little doubt that civil liberties, including freedom of information, will be targeted by those who would cede limitless powers to law enforcement. The early evidence is not encouraging:

• FBI officials went straight to many of the nation’s Internet service providers, who coughed up reams of e-mail data without so much as an evidentiary hearing.
• In a recent newspaper interview, Rep. Mary Bono (R-Calif.), proposed a national identification card.
• Self-censorship is teaming with direct threats against the news media. The world’s largest radio station owner sent its stations a list of 100-plus songs it “urged” DJs not to play. A wire service withheld news footage of the post-attack celebrations following Palestinian threats against a photographer. Sears and Federal Express yanked ads from the show Politically Incorrect to punish host Bill Maher’s opinion.

Terrible public policy
The freedom of information movement, no font of good news these days anyway, will witness a fresh round of proposals aimed at limiting access to information about the very things the American people most need to know about.

The attacks revived discussion of the Cyber Security Information Act, introduced last year by Reps. Tom Davis (R-Va.) and James Moran (D-Va.). The act would allow private sector companies to share ill-defined “vulnerability information” with the government completely exempt from the federal Freedom of Information Act, despite the fact that existing FOIA exemptions for commercial and financial secrets and law enforcement records already protect the sensitive portions of such filings.

But should all such information be exempt? Certainly not. Try an analogy: This is like the airline industry convincing Congress that it will share information about safety defects in planes, but only if that data is never revealed to the public. It’s terrible public policy, and journalists must be courageous enough to say so.

Remember the fight in August over the revived anti-leaks legislation? That bill died after a furious counteroffensive by editorialists and civil libertarians. Imagine the political capital behind such a measure now.

And don’t even think about flag burning. The Flag Desecration Act, that timeworn bastion of political correctness, is sure to be trotted out again – probably right around election season – to a nation hungry for causes. Two United States Supreme Court decisions and three failed efforts at a constitutional amendment later, the forces behind this rewrite of the First Amendment will be hard at work. Again, it will take real courage to oppose this wrongheaded move.

All of which leads us to the Combating Terrorism Act of 2001, an amendment to an appropriations bill that was passed by the Senate on Sept. 13 with no hearings and with little floor debate. Section 832 of the act seeks to enhance the government’s ability to capture information related to a suspect’s activities in cyberspace by allowing investigators to review a suspect’s entire Internet history – URLs, e-mail addresses, any attachments opened, and much more.

Such legislation may well be necessary, and may also pass judicial review. Unless challenged by a courageous press, however, Congress will not take its time to examine any new Internet surveillance legislation with great care. Indeed, it has not even held a public hearing on one of the greatest incursions into personal privacy in recent history. Journalists, thus far, remain silent on the issue.

The type of nation we become after this life-changing event depends, to some degree, upon what kind of journalism we pursue. Now is the time, more than ever, to challenge dogmatic thought, to spurn jingoistic displays of patriotism and to reinvigorate the Fourth Estate.

Perhaps Benjamin Franklin said it best: “They that can give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”