Two cheers for Congress: the end of a b(3)
July 29, 2013 2 Comments
Buried in the middle of the FY2013 National Defense Authorization Act (NDAA) was a pleasant surprise for us: Section 1078, rescinding a statutory exemption to the Freedom of Information Act (or, as we call it, a “b(3)” – after the section of FOIA permitting them), repealed much of the “Smith-Mundt Act”. And earlier this month, this b(3) officially expired.
The United States created the Voice of America during the Cold War to let news programs reach people whose political leaders restricted the press. Amidst concerns that U.S. propaganda might influence domestic policy debates, Congress banned distribution of that programming within the U.S. That is, until earlier this month.
At the urging of the Broadcasting Board of Governors (BBG), the government agency that runs these news services, Congress earlier this year lifted the ban on domestic distribution of these programs. The BBG argued these programs should reach U.S. audiences that might have particular interest in the programming. It provides its news services online in 59 different languages. The ban was an anachronism from a time when radio was the main way people received their news. Congress agreed, and earlier this year as part of the NDAA, Congress lifted the ban on domestic release of this material as of July 2, 2013.
Let’s be clear, especially in the middle of high-profile debate about the limits of NSA surveillance. Congress did not authorize the U.S. government to spread propaganda masquerading as news. Congress only changed the status of the Voice of America and other existing programming paid for with the State Department’s public diplomacy funds, such as Radio Free Europe and Radio Liberty.
Re-examining an anachronistic ban on disclosure – in this case, letting this programming reach audiences in the U.S. – is a great example of what agencies and Congress should do with hundreds of statutory exemptions to FOIA, called (b)(3) exemptions after the section of FOIA that recognizes them, that sit on the law books today.
Federal agencies that use them and Congress ought to reconsider these laws periodically. Congress ought to put sunsets on new ones, if nothing else to force agencies and Congress to reconsider. Those who would keep secrets should periodically reconsider the need for them, justify them publicly and articulate the harm that could arise without them. When writing new or renewing old secrets, secrecy advocates should ensure any exemptions are narrowly tailored and engage in public debate before they are turned into policy, regulation or law. Then, and only then, will we give a third cheer.
The Sunshine in Government Blog 
If it were some other type of information, I would cheer with you. But in this case, we are discussing government news and government press that government officials — not journalists who produce it — can use to influence public opinion and to target specific groups of Americans based on their ethnic and religious origins. It has happened before, to Japanese Americans during WWII, for example. The government produced content, your article refers to, was already available to any American or any American media on the Internet. It was not impossible or illegal to use it. What the new law did was to give government officials the power to market and possibly to target this material in the United States. Nothing to cheer about, in my view, since the old Smith-Mundt Act of 1948 law did not bother anyone and protected us from possible government news propaganda.
Thanks for posting your comment. Granted, rescinding Smith-Mundt may renew some risks despite congressional efforts to limit potential harms. That debate reinforces our argument that exemptions to the general rule of disclosure ought to be narrowly tailored, limited in duration, and subject to periodic public scrutiny and discussion to evaluate whether they remain necessary and relevant.
In our experience monitoring FOIA policy and proposals, Congress and the executive branch ought to spend more time examining these disclosure exemptions.