Thoughtful review by Jack Shafer of Rahul Sagar’s Secrets and Leaks: The Dilemma of State Secrecy (Princeton University Press, 2013, 304 pp. $35.00).

Sagar asks, when is it legitimate for an official to disclose secrets? His answer is both conventional and brave — because he must know how many readers will find examples that call his reasoning into question. Unauthorized disclosures of classified material should remain illegal, he writes, because no one official can know with any certainty which disclosures will ultimately serve the public interest. Having made the case for keeping the laws against leaking secrets intact, Sagar then sets five conditions a disclosure must meet before officials can disregard the laws: the disclosure must reveal real wrongdoing or the abuse of public authority, it must be based on evidence rather than hearsay, it must not threaten public safety disproportionately, it must be limited in scale and scope as much as possible, and the leaker must unmask himself and take his lumps to prove that he made the disclosure in good faith and not to gain advantage for himself or his allies.

The Snowden affair happened too late for Sagar to include it in Secrets and Leaks beyond a throwaway footnote, but it makes for an obvious and interesting test of Sagar’s framework. Snowden’s unilateral disclosures do not come close to clearing Sagar’s standard for legalization: as an NSA worker bee, Snowden was in no position to balance the public-interest repercussions of his acts. Nor do they clear Sagar’s first condition for justifiability: although the mass surveillance Snowden revealed may have come as a disconcerting shock to many of his fellow citizens, it might not have been illegal.

Shafer goes on to apply Sagar’s other tests to Snowden and makes some interesting points. He finds that some of them aren’t really relevant or useful. So we’re back to the intractable problem of how to deal with excessive secrecy in a democratic society.

Sagar devotes a chapter to why the regulation of secrecy can’t be turned over to the courts — they lack the expertise and the training to parse secrets, and they are supposed to be open institutions, doing their business in public. Nor can Americans expect Congress to do much better than the executive branch, he argues in another entire chapter. Congress can serve as a watchdog, but there is no reason to think it “will behave any more responsibly than the president,” especially when it knows that outsiders will not be able to second-guess its decisions. That leaves whistleblowers and the press to hold the president accountable for his handling of secrets. Sagar shuns this option. Although he approves of leaks that prevent abuses of power, he believes (along with many others in and around government) that journalists lack the necessary understanding of the big picture to responsibly pass unauthorized disclosures on to the public.

I disagree (but then, as a journalist, I would), because from where I sit, it seems the press has actually been quite conscientious in this regard — for example, in its reporting on the files stolen by the army private now known as Chelsea Manning. In January 2011, my Reuters colleague Mark Hosenball, a national security reporter, cited internal U.S. government reviews that assert that the massive leaks of diplomatic cables by Manning “caused only limited damage to U.S. interests abroad” and “made public few if any real intelligence secrets.” As with the publication of the Pentagon Papers, the leaks created more embarrassment than damage.

As for the Snowden leaks, it’s too early for journalists and others to discount the damage they may have done to U.S. national security. But rare is the leaker whose output unites almost half the House of Representatives, as well as the top Internet companies — Google, Microsoft, Facebook, Apple, Twitter, LinkedIn, Yahoo, and AOL — which issued a joint statement in early December protesting the government spying revealed by journalists working with Snowden.

This is a very good review which makes uncomfortable reading because it suggests that the ‘democratic dilemma’ of how to balance secrecy with accountability and openness might actually be insoluble. Some of the most vociferous establishment attacks on the Guardian‘s Editor, Alan Rusbridger, focus on the proposition that he is not in a position to judge whether a particular disclosure will endanger national security. But the weakness of that position is its assertion that only those who are within the secret circle are capable of making the judgement call. And, because of the necessity for secrecy, they can never explain their reasoning to us: in the end, that proposition boils down to “trust us”. But we have no idea if they are worthy of that trust, and sometimes they have clearly shown that they are not.

My contribution to the Blavatkik School of Government “Challenges of Government 2013” conference last December.

Good, robust column by Jack Shafer.

Wearing his best straight face, White House Press Secretary Jay Carney lectured China on press freedom yesterday. In a redundant official statement, he accused Beijing of restricting “the ability of journalists to do their work” and “imped[ing] their ability to do their jobs.”

If the Chinese cared about public opinion, they would have called a news conference of their own and read aloud from former Washington Post Executive Editor Leonard Downie Jr.’s comprehensive October report for the Committee to Protect Journalists, which cataloged the Obama administration’s hostility toward the press. Downie found that although President Barack Obama promised a more open government, his administration has prosecuted sources under the Espionage Act, imposed delays on and denials of FOIA requests, and closed its doors on reporters, systematically blunting the press. And recent revelations about mass surveillance by the National Security Agency and the secret subpoena of reporters’ phone logs and emails have contributed to a climate of fear in some newsrooms.

One of the things that has struck me most about Edward Snowden is how astute he seems to have been. Although he downloaded a lot of stuff, he seems to have been very discriminating in how he went about it. My reading of it is that he identified a number of practices that he thought/suspected were illegal/extra-legal/unconstitutional, then selected documents that would establish his case in each category, and downloaded those. And having done so, he seems to have been very canny in handling the subsequent media storm.

Now, more than six months on, people are beginning to see his modus operandi in a new light — as a template for new generations of whistleblowers. danah boyd has an interesting blog post about this, wondering whether whistleblowing might be the new Civil Disobedience.

People growing up with the internet understand that information is power. Those who’ve watched protests in recent years know that traditional physical civil disobedience doesn’t create the iconic narratives and images that it once did. And thus, not surprisingly, what it means to protest is changing. This is further complicated by an increased obsession with secrecy – secret courts, secret laws, secret practices – that make using the rule of law to serve as a check to power ineffective. Thus, questioning authority by leaking information that shows that power is being abused becomes a more valuable and notable form of civil disobedience. As with all forms of civil disobedience, there are significant consequences. But when secrecy is what’s being challenged, the biggest risk is not being beaten by a police officer for staging an event, but being disappeared or silenced by the institutions being challenged or embarrassed. And thus, as much as I hate to accept it, becoming a diplomatic incident is extraordinarily powerful not just for self-protection, but also as a way to make sure that the media doesn’t lose interest in the issues at play.

The smartest phrase I’ve heard about big data and ethics comes from my friend Sunil Abraham of the Bangalore Center of Internet and Society, who was involved with those conversations at OSF. He offers this formulation: “The more powerful you are, the more surveillance you should be subject to. The less powerful you are, the more surveillance you should be protected from.” In other words, it’s reasonable to both demand transparency from elected officials and financial institutions, while working to protect ordinary consumers or, especially, the vulnerable poor. Kate Crawford echoed this concern, tweeting a story by Virginia Eubanks that makes the case that surveillance is currently separate and unequal, more focused on welfare recipients and the working poor than on more privileged Americans.

From a typically thoughtful post by Ethan Zuckerman about a panel discussion on “Data and its Discontents” at Microsoft Research’s Social Computing Symposium