AN ECONOMY OF INFORMATION IN THIS INFORMATION ECONOMY: The Strange Paradoxes Behind The Public Disclosure Of Secret Information

In its recent decision in Bartnicki v. Vopper, the Supreme Court held, 6-3, that, pursuant to the First Amendment, a radio station could not be penalized for broadcasting an illegally intercepted cell phone conversation about a teachers' union controversy. Key to the Court's holding was the fact that the conversation had been illegally intercepted not by anyone at the station, but rather by an anonymous source.

More generally, the Court also held that "a stranger's illegal conduct . . . does not suffice to remove the First Amendment shield from speech about a matter of public concern." The Court also commented, similarly, that "[i]t would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party."

While the Bartnicki decision itself was carefully confined to its facts, these broad pronouncements could have broad repercussions.

This paradox is certainly not confined to the public disclosure of private cell phone conversations. Indeed, it is present virtually every time a breach of secrecy leads to information disclosure.

Consider a few examples: The publication of the "Pentagon Papers" was laudable. But publication of all information that is currently classified would be a disaster for the country.

Several insiders' books on the Supreme Court, based primarily on law clerks' insights, have provided an invaluable look into the workings of the most undemocratic of American institutions. But the publication of twenty such books could effectively prevent the Justices from being able to hire law clerks at all, and irretrievably damage the Court as an institution.

Jeffrey Wigand's disclosure of inside tobacco company information probably saved numerous lives. But wide-scale publication of confidential corporate information might destroy trade secrets, eviscerate important patents, and chill the incentive for research — as well as the ability to speak freely on important internal matters.

Complete secrecy — even when the public has a sharp interest — can be toxic. On the other hand, complete disclosure is untenable, too. Accordingly, all of these paradoxes describe situations in which the optimal economy of information demands that some "illegal" or "improper" disclosure occur — but requires, also, that the disclosure be sharply limited.

Any situation where limited disclosure is best raises a host of interesting questions: First, how can we incentivize the correct amount of disclosure — meaning, not too much, and not too little? That is, how can we give people fair notice whether their disclosure will be applauded or penalized? Second, can we tolerate the fairness problem when some are allowed to speak, while some necessarily must remain silent? These questions are difficult, and Bartnicki — while implicitly raising them — does little to answer them.

Interestingly, the Bartnicki dissenters — Chief Justice Rehnquist, and Justices Scalia and Thomas — disagreed with the majority's proposition that a regime of partial disclosure makes sense in the cell phone context.

Accordingly, the dissenters endorsed Congress' attempt to "dry up the market" for illegally recorded cell phone conversations by any means necessary. Among other points, they stressed that the 49.1 million users with analog cell phones deserve to know that their conversations are private.

However, the problem with the dissenters' view is that drying up the market entirely prevents a "Pentagon Papers" or Jeffrey Wigand-type situation, in which the need for the disclosure of the information intercepted by a cell phone scanner is far greater than the interest in secrecy.

The situation in Bartnicki itself — where the conversation intercepted contained what appeared to be a bomb threat (though it may have been a joke) — might count as this type of "intense public interest" situation.

Moreover, the dissenters' point about the chilling effect for cell phone users — who can no longer be confident their conversations are private — is really a point about notice.

If the Court were to provide clear guidelines about what speech is considered to be in the public interest, and what speech is considered truly private, then most cell phone users could rest easy — knowing that at worst, a random stranger scanning may listen in on their conversation, but the public will never learn of it.

The concurrence by Justice Breyer, joined by Justice O'Connor, seems to recognize the need for such guidelines. Even so, it only gestures towards what they might be — and of course, it only expresses the view of two justices. Citing prior cases, the concurrence indicates that such subjects as "sexual relations," "intimate private conduct," and even the "divorce of [a] wealthy person" are off limits; publicizing recorded cell phone calls on these subjects will be penalized. But these cases, where privacy interests seem particularly intense, only begin to draw the needed line.

With the possible exception of the divorce example, all these instances of privacy are no-brainers. What about other examples of conduct that might test the private/public boundary in a more interesting way?

Examples might include the use of sleazy tactics in a high-profile corporate breakup, the messy divorce of a governmental official, or the sexual activities of a writer who often speaks publicly — and, some say, hypocritically — on sexual topics. The recent Giuliani and Andrew Sullivan controversies come quickly to mind as instances where the private/public boundary is tested.

Will charges of hypocrisy, dissembling, or unethical behavior by a public figure mean that courts recognize a public interest in private conduct? Right now, it's impossible to tell. Such cases will have to be litigated — at the media defendants' risk.

Moreover, if these controversies involve publication or broadcast of illegally recorded cell phone calls, it's unclear what penalties the media might, or might not, suffer.

It would be obviously improper for the Justices to legislate specific rules about what is private versus what is public. But so far — with the exception of the concurring Justices — they have effectively dodged the task of drawing the line. They should do more to provide greater certainty for the media.

Finally, what Bartnicki fails entirely to discuss is the significant fairness problem with systems of limited disclosure. In systems where limited disclosure is optimal, speech by one speaker inevitably worsens the chances of those who follow — because of the natural cap on the volume of secrets that can be publicized before a serious legal crackdown occurs.

Had cell phone conversations been routinely broadcast on the radio, for example, the reasoning in Bartnicki might have been somewhat different, for the pervasive invasion of privacy the concurrence feared would have already been a reality. As a result, the Court might have found it necessary to more strictly limit, for the future, the public disclosure of private cell phone conversations. In that case, the radio station in Bartnicki still might have been safe, but media sources engaged in a similar kind of disclosure, in the future, would find their speech rights curtailed.