Government dependence on contractors is causing a data crisis

Despite the rapid growth in artificial intelligence and a reported 200 zezabytes of data worldwide, “we are facing a new crisis in research access to data,” says former reporter says. He spoke at Harvard University in May of this year.. The culprit in the crisis is a two-headed monster: the government and the private sector.

The ramifications of this monster became clear in federal court on May 9, when the government claimed that thousands of documents containing basic diversity statistics for the contractor's workforce were confidential.

This case is just one of many showing that as governments become more privatized, so too do claims of secrecy.

In the case before the Ninth Circuit Court of Appeals, the Department of Labor said in briefs that the single-page form, called the EEO-1, only contains basic diversity statistics for federal contractor employees. However, he claimed that it was a trade secret. Civil rights activists, members of Congress, investment firms, and the companies themselves have increasingly championed EEO-1 transparency. Different companies repeatedly publish these records online (more than half) of S&P 500 companies publish their EEO-1s, and the agency has been releasing such records for years under Freedom of Information Act requests.

Even though diversity reports are managed and collected by the government to fulfill a government function (ensuring diversity in the workplace), government agencies and their contractors are aware that these records are confidential business information. It is adamant that there is (despite two lower federal courts disagreeing and ordering disclosure). In fact, the Center for Investigative Reporting, for which I serve as general counsel, has filed this lawsuit three times in federal court (this is the third time). Previous lawsuits have shown that companies often suppress records not to protect trade secrets but to avoid embarrassment.

For example, in a 2019 letter to the Department of Labor, Palantir said that if diversity numbers were made public, “competitor companies would be able to identify where Palantir has made great strides in hiring women and minorities and implement specific hiring strategies.” “There is a possibility that they could be targeted,” the statement said, creating a competitive disadvantage. This is a job type to steal this human resources from Palantir. ” However, when the company folded, the report found that the company had no female executives and only one woman in a management position.

This incident is not an isolated incident. The Department of Homeland Security later claimed that its contracts with companies detailing the detention of immigrants, including children, were confidential. At the state level, New York, Arkansas, and Idaho maintain that personal health records maintained by government contractors are confidential. Records revealing how private contractors calculate crime recidivism rates are also kept secret. States similarly seek to hide records regarding critical public resources such as water when private contractors are involved.

This widening of the information gap is largely due to the expansion of legal means of confidentiality, including a series of recent Supreme Court cases that impede transparency. In 2018, the Supreme Court ruled that state disclosure laws are no longer constitutional under the First Amendment, even though they were passed to ensure government accountability and corporate responsibility. .

In 2019, the Supreme Court expanded the definition of “confidential business information” under the Freedom of Information Act, making it easier for contractors to claim that data they create for the government is confidential. And in 2021, the court again limited states' ability to pass transparency laws. Similarly, over the past decade, companies have used shell companies and other similar legal devices to hide information such as land ownership records.

The rise of legal secrecy corresponds directly to the economic reality that privatization is swallowing government responsibility. A 2019 government survey found that four out of 10 government employees are private contractors, and that number is increasing every year.

This trend will result in the federal government spending nearly $694 billion on contracts by 2022. Governments employ contractors to provide a wide range of products and services, from military aircraft and software to educational tools and health care management. But the federal government itself has warned that the use of contractors is prone to problems such as violations of civil rights and liberties and a lack of accountability.

As Jodi Freeman and Martha Minnow pointed out in their 2009 book, Governance by Contract, this privatization trend is not new, but the resulting lack of access to data is worse than ever. I am. As government contracting increases, access to public information is limited due to recent legal innovations that allow states to hide behind contractors and their newly created secrecy legitimacy. is decreasing.

In other words, data that was previously public is now private. This issue is even more concerning as government technology increasingly collects only intimate data and gives individuals access to their own information.

Courts should reverse this worrying trend by creating similar due process access rights to government records, as they have already done in several cases. If nothing changes, this crisis will only deepen.

D. Victoria Baranetsky He is a First Amendment lawyer and general counsel for the Center for Investigative Reporting, which publishes Reveal and Mother Jones.