Secrecy Creep

Abstract

Legal scholars have long been fascinated by the topic of government secrecy. Yet they have largely focused their attention on federal secrecy, rarely straying beyond the confines of the federal government to explore secrecy in other contexts. This Article addresses this gap. It turns its attention to secrecy in state and local government, applying the lens of federal secrecy to the sub-federal regime. In doing so, it identifies a troubling new development in state and local law: the migration of powerful federal secrecy protections, initially developed to shield the national security state, into the state and local context. I refer to this process as “secrecy creep.” And I argue that we should be wary of this trend.

By illuminating the architecture of state and local secrets, this Article makes three central contributions. First, it offers a descriptive account of sub-federal secrecy, identifying points of convergence and divergence with the law governing federal secrets. Second, it illuminates the process of secrecy creep, highlighting the ways that federal secrecy protections have migrated into state law to shield state and local governments. Third, it warns of the perils of this migration. It argues that these federal secrecy protections often sit uneasily within the distinct legal structures and traditions that exist at the state and local levels. And it demonstrates that excessive secrecy is uniquely harmful at these lower levels of government, where there are fewer countervailing checks to government power.

Further, it reveals that secrecy creep raises special concerns in the context of policing. While the process of police militarization has received ample attention in recent years, this Article reveals the existence of a parallel intellectual trend — a kind of “national security-ization” of local police. These local law enforcement agencies have not only gained increased access to military weapons and the surveillance devices of the national security agencies, but they have also gained increased access to the robust informational protections that shield these weapons and tools from public view. This creates a feedback loop: the more that local police rely on military equipment and federal surveillance technologies, the more persuasive their arguments for borrowing these federal secrecy protections become. In this way, illuminating the process of secrecy creep adds a new dimension to contemporary discussions of police power and constraints.

Keywords: local government law, national security law, transparency law, policing, police accountability