On Secrecy

Interesting law paper: “The Implausibility of Secrecy,” by Mark Fenster.

Abstract: Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events ­ among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters ­ undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources ­ each of these constitutes a path out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.

This article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, in the process countering and complicating the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the article catalogs and then illustrates in a series of case studies the formal and informal means by which information flows out of the state. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law.

Posted on March 14, 2013 at 12:19 PM11 Comments


Craig March 14, 2013 1:04 PM

I was thinking it would be ironic if the complete article were hidden behind a paywall, but fortunately, it isn’t — you can read the whole thing for free. Nice!

pegr March 14, 2013 1:18 PM

People seem to forget the whole issue with secrets anyway. The goal is not to keep your secrets forever. That’s not possible. The goal is to keep your secrets long enough to be effective. You should always assume your secrets will be exposed.

Put another way, if you need to keep a secret forever, you’re likely doing something immoral or unethical.

Snarki, child of Loki March 14, 2013 1:50 PM

“Three can keep a secret. If two of them are dead”

“… the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so,”

What “constitutional authority” would that be, and why does it trump the 1st Amendment?

Or is that the secret National Security Trumps Everything Amendment, that is written in invisible ink?

SJ March 14, 2013 2:51 PM

Secrets have some value. It is knowledge whose value is mostly dependent on who possesses it, under what conditions, and when.

But once knowledge has a value, it enters into the realm of things that can be traded for other items of value.

Thus the “formal and informal means” of communication that the paper outlines.

David March 14, 2013 3:14 PM

The secret to the successful control of secrets is to limit your scope — ie. only control that which MUST be controlled — and then put all your efforts into keeping those secrets. Even then it is inevitable that the secret can only be controlled for a time.

The government’s problem today is that they want EVERYTHING to be secret, which will never be achievable.

Clive Robinson March 14, 2013 5:03 PM

I know it sounds trite but the first problem with secrets is “what is a secret?”…

It’s one of those words that everybody knows what it means but then wave their arms with “you know secret” when you ask them to define it. If you look it up in various dictionaries you get two or three definitions in each… which does not help.About the simplest definition that’s usefull is,

Something that is kept or meant to be kept unknown or unseen by others

Thus you have four key words,

1, Something.
2, Unknown.
3, Unseen.
4, Others.

Usually (but not always) the something can be abstracted to information directly or information about a physical object such as it’s existance or location or other atributes. In which case Unseen becomes in effect the same as Unknown.

Which leaves us “others” which is one of the two subsets of all entities which is equal to “entities to which the information is unknown”. Oddly perhaps the other subset “entities to which the information is known” can have zero members, and is infact the normal state for much information. This is because information is in effect transitory and is continously changing with time.

And that is missing from the above definition and is only aluded to by the word “kept”. However as has been observed “information loves to be free” but that is actually the exception rather than the rule.

The reality as most historians will tell you is information gets lost in it’s entirety or goes stale and in effect becomes decayed to the point where it is sufficiently out of context to be nolonger meaningful. This happens because information actually consists of two parts

1, Data.
2, Data Description or Meta data.

Neither is much use on their own. We see this with clay tablets that record transactions, because the recording only containss the data not the meta data as well we are left guessing as to the actual meaning of the data.

Because of this known problem we have archivists trying to reverse entropy and preserve documents in their original form even though much of them are in effect usless because they lack sufficient meta data.

However things are changing in this area because of the computer it is becoming possible to put data with only partial meta data into a database and draw inferences about the missing meta data. As this becomes known it is possible to further identify not just where data is missing but often it’s value. That is it’s become possible to re-create secrets…

This is one of the reasons the NSA want to record everything that moves on the internet over voice, video, fax and every other form of communication it’s possible to record.

However there is a danger in that even a minor error in re-creating information, might easily generate secrets that never were.

That is potentialy such data could generate a faux secret, and use this as the basis for trying to pursue and potentialy convict people under conspiracy legislation…

joequant March 16, 2013 10:28 AM

Actually, I can think of two examples in which governments were able to keep secrets and illustrate the paradox that a culture of transparency is that it can actually improve the ability to keep secrets.

1) Engima. The importance of code breaking in defeating the Germans and the Japanese was totally unknown until the documents were declassified under the thirty year rule in the 1970’s.

2) The Canadian caper. The US and the Canadian governments were able to keep secret the fact that Americans were hiding in the Canadian ambassadors house for several months. One interesting thing about this is that some major press agencies figured this out, but they at the request of the US government they did not print the story until the people were out of Iran.

The interesting thing about these situations is that secrecy worked because the people involved understood the consequences of revealing the secret.

The problem is that if everything becomes a secret then people start assuming that people are keeping secrets for petty political reasons and at that point people have no reason not to talk if you ask. One problem with all of the attention that the US has put on secrecy with respect to things like Wikileaks is that to an outside observer, the stuff that got exposed was merely embarrassing but none of it damaged national security in any way.

Clive Robinson March 16, 2013 4:48 PM

@ Joequant,

1) Engima. … was totally unknown until the documents were declassified under the thirty year rule in the 1970’s

Totaly wrong.

The “Secret” was released by Fred W Winterbotham’s book “The Ultra Secret”. Released in 1974 it was less thirty years after the ending of WWII and Churchill’s edict that ULTRA remain secret for a hundred years or more.

What made the book so popular at the time was not so much the ULTRA side but the “Myth of Coventry and Churchill” that Winterbotham started (which still persists today).

Basicaly he said Churchill new Coventry was to be bombed from Enigma traffic (untrue) and that in order to prevent the ULTRA secret being revealed he prevented air defences etc being moved to coventry (also untrue).

Coventry was unfortunatly bombed to what appeared to be almost to the point of extinction and the loss of life etc was very disproportianate to other bombing raids of the time.

All that was known from German supply movment orders obtained from Enigma de-crypts was that a large raid was being prepared for. Due to it’s size and the units being supplied it was unclear what the target was. Based on the size and other information it was considered most likely it was to be London again which is what Churchill belived and some preperation was actually carried out.

However what was known is that the Germans were using a radio beam guidence and bomb release system. A downed german aircraft with an intact radio was captured and measurments showed that the audio filters were way to selective even for normal morse telegraphy. Air observations made at the request of Dr R.V.Jones showed that the Germans had narrrow radio beams that sent out dots and dashes. A pilot would fly up the beam where the dots and dashes murged into a single tone the bomb release buton was pressed when another tone from an enttirely different transmitter was heard.

Under R.V.Jones directions hospital diathermy machines were ceased and modified to act not as jammers but to “bend the beams” by either adding extra dots or dashes to cause the planes to fly either left or right of the real course and thus drop their bombs well wide of the targets.

This had worked well but the Germans changed the audio frequences shortly before the Coventry raid and the new frequencies were not reported correctly thus on the fateful night the raid happened as the Germans had planned…

Because of the wide popularity of the book because of the myth, many of the tens of thousands of people who had worked at Bletchly, the X and Y stations the DWS and SLU’s of MI6 and the FANY felt the could now talk about their experiances (and did).

The result was shock and disbelief in Germany and the other Axis nations but worse, the British and others had sold of surplus Enigma’s and Typex machines to many other countries and they were still in use by these countries at the highest diplomatic and military levels.

It was this that caused various countries to make discreet enquires into a suppler of “rotor based” systems and one found sufficient evidence to link this supposed independant Swiss Company back to the NSA (google “Boris Project” or read http://cryptome.org/jya/nsa-sun.htm ). It was belived but not confirmed that this had been happening since the mid 1950’s shortly after the NSA was formed. However US President “Ronnie the raygun” let slip that Lybian traffic had been intercepted, and later a secret message from Iran also became public knowledge. The result was the arrest and detention of one of Crypto AG’s sales reps, who after nine months of extensive interogation was ransomed for 1Million USD, upon being released he was then prosecuted in Switzerland by Crytpo AG… This forced things out in the open. Which caused a supposed intensive investigation by Swiss authorities who unsurprisingly did not find any evidence. Since then other information has come to light and the former captive started a court case against Crypto AG at which several ex Crypto AG employeess were going to testify. Crytpo toughed it out untill the 11th hour and folded and did a deal for confidentiality payments etc. As a result Crypto AG’s standing has very much been called into question and it has thus lost much of it’s market share to others.

It was later that the US started to release Enigma information with duplicates of British documents that had been destroyed in the UK under Chirchiill’s edict that enabled the re-build of Tommy Flower’s computer, which can be seen on display at Bletchly Park Museum (created by the long and persistent work of the late Tony Sale).

PGT March 18, 2013 9:22 AM

I’m always amused by claims that ‘secrets always leak’. This is about as good an example of observational bias as could exist.

If you’re not privy to a secret, you’ll only know it exists if it leaks. An unleaked secret is one you don’t know about, by definition. There could be an undefinite number of secrets which are successfully kept.


Danny Moules March 19, 2013 11:26 AM

@PGT If you assume that the phrase has come about through an observation of others as a black box, yes. People can, however, record first-hand reports of lost information. In the age of ISO 27001 and the Data Protection Act, many departments/companies have an obligation to record that information.

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