Can Government Function Without Privacy?

The release of Hillary Clinton’s emails signals a sharp break from the confidentiality traditionally afforded to top officials.

For all the attention paid to Hillary Clinton’s emails this year, little has focused on the larger implications the events could have for America’s rapidly changing standards of privacy.

Publicly releasing the private correspondence of a freshly departed secretary of state represents a clear historical break from the privacy protections traditionally afforded cabinet members. Since the Cold War, such documents have typically been released after a 30-year delay (what historians affectionately call the “30-year wall”) in the interest of giving government officials space to express controversial ideas without fear that political enemies might later use snippets of those discussions against them. The irony here is that by keeping her correspondence on a private server, Clinton set in motion a chain of events that ultimately weakened these well-established protections. Perhaps this new transparency is a positive development in the post-Snowden era, perhaps not.

The way historians go about writing foreign-policy history provides important context for the privacy implications of the Clinton email scandal. Every year, scholars and nonfiction writers gather in Washington, D.C., eagerly awaiting the release of newly declassified documents from the State Department archives. These gigantic volumes, each thousands of pages long, make up the Office of the Historian’s Foreign Relations of the United States—or FRUS—and cast new light on historical moments that were previously under-sourced or, sometimes, entirely misunderstood. This is why historians are able to produce groundbreaking books about topics that people have written about for generations.

The earliest FRUS volumes date back to the Civil War, when in 1861 President Lincoln ordered that a collection of his administration’s diplomatic correspondence be published and delivered to Congress in the interest of transparency. But Lincoln was also clear in an accompanying message to Congress that he purposefully withheld a number of documents. He referred to them as “the usual reservations,” a nod to the well-established history of the executive branch exercising a prerogative to keep State Department correspondence private from Congress and the American people.

Among the more commonly known early episodes are President Washington’s refusal to hand over records relating to the controversial “Jay Treaty” with England, John Adams’s decision to withhold letters concerning the inflammatory “XYZ Affair” with France, and the secrecy of Jefferson’s negotiations for the Louisiana Purchase.

To be sure, transparency in government is essential to any liberal society. But privacy is also a necessary component of state function, and not just the kind of privacy that deals with national security. For the same reasons that individual citizens need privacy so that they can better formulate ideas, assess their surroundings, and respond to problems intelligently, so too do government officials need privacy to reflect on the long-range effects of their policies and to engage in frank discussions aimed at finding intelligent solutions.

Consider also that the Constitution of the United States was written behind closed doors, with its authors sworn to secrecy, and that the notes of the debates were not released for 50 years. Alan Westin, perhaps the most influential privacy scholar of the 20th century, once argued that “if the [constitutional] convention’s work had been made public contemporaneously, it is unlikely that the compromises forged in private sessions could have been achieved, or even that their state governments would have allowed the delegates to write a new constitution.” This understanding of privacy speaks to the importance of confidentially for certain democratic processes and confidentiality about those processes afterwards (for a reasonable period).

President Eisenhower expressed similar sentiments in a 1954 memo rejecting Senator Joe McCarthy’s subpoena for various documents, claiming it was “essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising with each other.” When the Supreme Court ordered the release of Nixon’s secret recordings 20 years later, the justices made a point of noting that this precedent of executive privacy remained valid.

The release of Clinton’s emails raises serious questions about how this perception of organizational privacy is changing. Granted, the fact that her emails were kept on a private server instead of a government one (where they would have been immediately forwarded to the State Department archive) makes her case somewhat slippery, and has led to allegations of illegalities still being investigated. It should also be noted that she herself released a large number of those emails, albeit under considerable pressure.

But still, something has changed here. Communications technology has evolved to a point where vast amounts of official correspondence can instantly be shared with the public at large—a public that doesn’t need to go to D.C. or pour over government volumes, but can simply access that correspondence from a smartphone. No Constitutions were found unwritten after those emails were read, yet their release to the public represents a benchmark in the history of American privacy.

Among the most vocal of those who filed FOIA requests for Clinton’s emails was Vice reporter Jason Leopold, who identifies as nonpartisan. He says he filed the requests because he “wanted to gain insight into how she conducted herself as Secretary of State, and how that would inform the public as to how she may be as president.” Americans do need people like him to continuously apply pressure, but the logic behind his justification, and that of many Americans weighing in on the email scandal, demonstrates a privileging of disclosure over privacy.

Most modern privacy law hinges on a key principle of whether an individual or institution had a “reasonable expectation of privacy.” Whether or not Clinton had one in this case, because she abandoned the State Department servers for her own, can be argued either way. But the people who emailed her, from the unsympathetic Lanny Davis to the calculating Sydney Blumenthal, all certainly had reason to believe that their conversations would not be subject to public scrutiny—at least not until a few decades had passed. The danger here is the potential for a “chilling effect” that makes politicians less likely to speak candidly, grow even more formalized, and pursue new and potentially dangerous avenues of secrecy that move further away from an appropriate privacy balance.

But, again, this may all be for the best. If the Snowden revelations proved anything, it is that technology has provided modern governments with unprecedented mechanisms for invading the privacy of their citizens. So perhaps it is fair that technology coupled with Freedom of Information Act (FOIA) requests can also serve as a great equalizer. But if privacy problems are indeed among the foremost concerns facing the nation, they should be viewed in their proper context—and right now they’re not.

Not all secrets are nefarious. It’s not that cut-and-dried: Secrets can be incredibly useful to democratic government. They’re what created the Constitution. And what could be more American than that?