By most measures, the 113th Congress of the United States was one of the least productive in history, failing to pass major legislation for most of its two years. One exception was the Digital Accountability and Transparency Act, a historic open-government law that passed last year after an arduous three-year process. The DATA Act established government-wide standards and quality requirements for financial data, which will make it far easier for the public to understand how Uncle Sam is spending taxpayer dollars.
The overwhelming bipartisan support for the DATA Act and the principle behind it -- that government spending should be disclosed to the public -- reflects a larger truth: People from all directions on America's political compass want open government. In May of this year, two noted activists from different quadrants -- small-government advocate Grover Norquist and consumer advocate Ralph Nader -- joined me on stage at the Data Act Summit, a conference to examine the status of the DATA Act one year after its passage.
"People care deeply, even average citizens," said Norquist. "If you just ask them whether the government should be transparent, the answer is yes, and they're serious about that. I think the best ways to get other countries that are not very transparent and that are much more corrupt than the United States government [to act better] is for us to be better at it. This is about reforming other countries by reforming us first and being a good example. We don't have to go over there and occupy to get someone to behave. It's a matter of doing it well ourselves."
Here are some of the highlights from our wide-ranging conversation on how government data should be published, shared and used -- or not -- in society:
Location, location, location
Many kinds of open data are coming online now, from health to energy to transit to real estate. Technology companies that specialize in real estate, like Zillow and Redfin, are among the leaders here. People are interested in what properties are worth, how that changes and what's available nearby. According to the Pew Research Center, a majority of American adults are comfortable with sharing real estate transaction data.
Norquist argued that if information is already publicly available on paper, putting it online is just a way to democratize the process.
"One of the arguments you make is that this is available if you want to get it," said Norquist. "Someone goes down to the City Hall and gets all the tax data, like the value of the house and when it was sold and so on. ... It's not a secret that's being exposed. It's an open secret. It's information that's legally available to all citizens, but not able to find easily. You want more people to have more information, quicker."
The thing is, people are all for information being publicly available until "openness" comes too close to home. That Pew survey found that 75 percent of Americans are uncomfortable with mortgage data going online. In New York state a few years ago, a local newspaper acquired handgun registration data through the state's Freedom of Information Law and mapped it. The journalists took it a step too far when they put actual names and addresses on a searchable map. That created a massive scandal, the paper took the map offline, and the New York state legislature changed the law. People still want and need some privacy, which puts a premium on thinking through the ethics of a more transparent age.
What about our rights?
Applied to the powerless, openness may be deeply problematic, even immoral. Take the issue of building owners using housing court records in New York City to create tenant blacklists. The city government has tried to crack down, but companies are still paying for those data, correlating cases to names, and selling the results to other companies or landlords.
At all levels of government, officials are entrusted with confidential data that citizens want to be kept private, from Social Security info to health data to tax records. When governments fail to protect private data from intrusions or leaks, people's lives may be permanently changed through identity theft or worse.
"The tragedy is that if we don't find a better word than privacy, which has a kind of luxurious connotation, like 'get over it,' and get to the real gravity of the civil right that's being protected here, it bores people," warned Nader. "You can't get people really upset about it unless they're burned by it, and a lot of times, they don't even know they're being burned by it. You get a credit application denied -- you don't even know you're being burned by it."
Some major differences of opinion divide the Obama administration, the law enforcement community, and privacy and civil liberties advocates as to when and how data and devices should be strongly encrypted. "Strong encryption" refers to security measures that lock access to data or computing devices using a number at least 256 digits long. Law enforcement officials, including the FBI, want to be able to access any data or mobile device through built-in "backdoors" or keys held in escrow. A broad coalition of civil liberties groups, tech companies and security experts wrote a letter in May to President Barack Obama urging him not to allow such backdoor exceptions because they would weaken the U.S. tech industry, harm IT security and undermine human rights.
"I'm for hard encryption," said Norquist. "We had this argument a long time ago, when the FBI wanted to ban encryption in American software, even though there are 19 countries that did hard encryption -- including countries that aren't our friends. It's not like the bad guys couldn't get it. I testified on the subject."
Yelp with government data
Sunlight on government or corporate corruption can help hold the powerful to account. Sunlight on your local diner can be fundamentally useful. Pew's research showed that a majority of Americans are extremely comfortable with the idea of putting food safety or restaurant inspection data online. They want to know if the place they're dining has a history of uncleanliness. So what other kinds of disclosures should be digitized so they can be used at that point of decision-making?
Norquist suggested that consumer reviews of products, services and providers in two-sided arrangements, such as Uber's drivers and passengers, can do a better job of informing the public than regulators can.
"I think it makes the information in the market so much higher quality, both directions, than you'd ever have through the regulatory state," he said.
There are many places, however, where government agencies already collect data about goods and services, which they release back into the marketplace. The Securities and Exchange Commission and the Financial Industry Regulatory Authority, for instance, gather information from financial advisers and then disclose it, along with complaints against those professionals. In 2011, BrightScope liberated that material and built a business around it, creating a searchable directory of financial advisers. Agencies collecting consumer reviews could be an essential arbiter of quality and a bulwark against false or defamatory statements.
Norquist wasn't sure if he broadly supported government agencies collecting and releasing data in all markets. Where a regulator is already doing so, however, he said he'd "certainly like it to be legal to be released, sold voluntarily, shared, as much data as there is out there. I think government is going to have some data, and that should be public information."
The long data shadow of prison
Today, a growing number of Americans agree on the need for criminal justice reform. One challenge is that convicted criminals moved from prison to parole are likely to be subject to unprecedented data collection. Norquist suggested that managing that kind of surveillance will be part of reform discussions.
"I work with Right on Crime, which is a group of conservatives who are in the process of rethinking how many people you need in prison for how long to keep crime down rather than up," he said. "Technology makes a lot of things possible, to not spend as much money incarcerating people and still have crime rates falling."
If reform gathers momentum in Congress, we should be discussing whether, when, how much, and by whom former offenders will be tracked. Should all sex offenders be in a database and tracked with GPS devices? How much of that data should be retained or shared, and with whom? What should be held back from publication, blocked from social networks or even removed from search results?
"There's an expungement movement," said Norquist. "At what point does something you did at 15, which went into a file, disappear? Is there something, after X number of years, it shouldn't be on your record?"
He noted the long reach of a criminal past when comes to current employment, particularly with the growth of licensing for many jobs. According to The Economist, some 30 percent of U.S. workers now need a license or permit from the government.
"The people who do your nails, the people who do your hair, the interior decorators, all get a license in some states," said Norquist. "One of the first things they do is say 'no criminals.' You can't have criminals. And no felons. Somebody can't be a barber because of X numbers of years ago they committed a crime? I understand no bank tellers if someone has been an embezzler, but there's a lot of that that can come out."
Nader agreed, noting that a felony conviction punishes people in ways that go far beyond prison, from losing the right to vote in some states to difficulties with obtaining public housing, student loans and jobs. Limiting the movement of data about Americans' criminal histories might be necessary to enable people who have served their time to rebuild their lives.
"There's a real movement here, fortunately, to get rid of these laws," Nader said. "A lot of stuff is going on in legislatures all over the country, in the voting area and other areas. But what's important is every time you get rid of one of these laws, you get rid of the data that can be requested, that can be used to harm people who are free and paid their debt to society. This business of post-punishing people that have already served their punishment someday I hope will reach the Supreme Court and be invalidated under the equal protection clause of the Constitution."
Norquist and Nader had a lot more to say on how a transparent government should work. Watch the video of our full conversation at the Data Transparency Coalition's conference above.