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The Implausibility of Secrecy


Mark Fenster


University of Florida - Fredric G. Levin College of Law

February 18, 2013

Hastings Law Journal, Vol. 65, No. 2, 2014

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 infamous 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, and open sources all constitute paths 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, while complicating and countering 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 the formal and informal means by which information flows out of the state in a series of case studies. 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.

Number of Pages in PDF File: 55

Keywords: secrecy, transparency, FOIA, Freedom of Information Act, leaks, information theory, Administrative Law, government information, unitary executive, redaction, WikiLeaks, covert operations

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Date posted: February 20, 2013 ; Last revised: February 3, 2014

Suggested Citation

Fenster, Mark, The Implausibility of Secrecy (February 18, 2013). Hastings Law Journal, Vol. 65, No. 2, 2014. Available at SSRN: http://ssrn.com/abstract=2220376 or http://dx.doi.org/10.2139/ssrn.2220376

Contact Information

Mark Fenster (Contact Author)
University of Florida - Fredric G. Levin College of Law ( email )
P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0962 (Phone)
352-392-3005 (Fax)
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