Donald Trump has little regard for the privacy of the masses. During the 2016 campaign, he bought access to psychological profiles of millions of voters created by scraping and studying their Facebook accounts without most of them having granted permission. He signed a bill repealing FCC rules that limited the ability of Internet service providers to sell data on our browsing habits. Like his predecessor, he presides over surveillance agencies that collect metadata on the private communications of hundreds of millions of Americans whether they like it or not. And his administration pays a private corporation for access to billions of photographs that reveal where and when particular cars drove on public roads and highways.
Yet even as President Trump exploits information so private that gathering it would have been unthinkable a generation ago, he engages in unprecedented efforts to prevent voters from getting a full, accurate picture of matters bearing on his public life.
Americans still haven’t seen his tax returns.
The opaque nature of his family’s multinational company makes it impossible to understand his conflicts of interest as he directs foreign policy for the United States. His son-in-law, Jared Kushner, has repeatedly filed incomplete or inaccurate forms with the federal government, both as part of his effort to secure a permanent security clearance, and to comply with federal disclosure rules intended to forestall conflicts of interest.
Trump’s lawyer is trying to stop Stormy Daniels, a porn star with whom he allegedly had an extramarital affair, from telling the public about their relationship.
And most ominously, the non-disclosure agreements Trump has long used to stifle his private-sector workers have now reportedly been used in an attempt to gag public employees.
“In the early months of the administration, at the behest of now-President Trump, who was furious over leaks from within the White House, senior White House staff members were asked to, and did, sign non-disclosure agreements vowing not to reveal confidential information and exposing them to damages for any violation,” Ruth Marcus reports. As Ben Wizner of the ACLU subsequently noted, “These so-called NDAs are unconstitutional and unenforceable.” Still, the prospect of fighting a billionaire in court over an NDA could easily chill protected speech.
And Politico reported last year that “senior staffers on the House Judiciary Committee helped Donald Trump’s top aides draft the executive order curbing immigration from seven Muslim-majority nations, but the Republican committee chairman and party leadership were not informed,” adding that “the staffers signed non-disclosure agreements, according to two sources familiar with the matter.”
Those agreements were an affront to the separation of powers and congressional oversight insofar as they prevented legislative staff from leveling with their own bosses.
All of this adds up to an upside-down privacy culture.
Law-abiding citizens of modest means are subject to inescapable government surveillance and opaque corporate data-gathering in their private lives, while the most powerful elected officials and many of the most powerful figures in tech— which rivals government in its ability to intrude on the privacy of billions—marshal their wealth and power to obscure even actions that profoundly affect the public sphere.
Very recently, the public learned how Harvey Weinstein leveraged his wealth and power to conceal many truths about his egregious misbehavior. Late Monday, the Weinstein Company announced its bankruptcy and released those subject to non-disclosure agreements from their forced secrecy, declaring, “No one should be afraid to speak out or coerced to stay quiet.”
One wonders what the public would find out about its elected officials if the law ceased to allow them to enforce any non-disclosure agreement pertaining to past misbehavior even in their private ventures, or from barring assessments of their character by the people who know them best.
What would we learn about Trump in particular?
The current Congress is unlikely to force any information out of the White House. But it should end the ability of federal officials to enforce most non-disclosure agreements, whether against a mistress or a wronged woman or a former underling in the private sector or campaign staff. Speaking truth about people seeking or holding positions of great civic power should not be verboten in a representative democracy.
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