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Sometimes it’s hard to tell whether most proposals to make speech or open government practices illegal are just silly or actually sinister.  Is the gag reflex—that is, the reflex to gag someone else—the product of a photophobic anxiety that is well-meaning but misinformed about the law, the facts or both—“If this gets out the sky will fall”? Or is it the result of a deliberate attempt to suppress information or even curiosity about embarrassing if not incriminating anomalies or arrangements— “If this gets out the game is up”?

(To find out, it would be helpful to embed source taggants into all legislation so that the actual authors of each  element of a bill could be traced back and identified for purposes of credit or otherwise, answering the question we so often have, especially with Congressional output, “Who put that in the bill?”  If taggant seeding is worth requiring in order to ease finding out who purchased certain ammunition or explosives, it’s certainly worth doing to discover the parent of would-be or actual laws with much wider and more continuing destructive potential.)

In any event, a prime example of an idea that’s at least silly if not sinister is a provision in the Senate version of the pending omnibus Farm Bill that would create civil and criminal penalties for the disclosure of information gathered in the U.S. Department of Agriculture’s developing National Animal Identification System (NAIS).

NAIS is USDA’s work-in-progress technical response to the nation’s limited experience with Bovine Spongiform Encephalopathy—“mad cow disease”—and the challenge of tracing the origin of sick animals to allow effective meat recalls and other public health measures.

A year ago one of the secrecy issues surrounding this regulation was addressed with Governor Schwarzenegger’s signature of SB 611 (Speier) which, as described by Consumers Union at the time,

allows California public health officers to notify the public of the names of retailers that receive USDA-recalled meat and poultry, so that consumers can better protect themselves from food-borne illnesses.
    In 2002, California’s Department of Health Services (DHS) signed a secrecy agreement with USDA, agreeing not to release the names of the stores and restaurants where tainted, USDA-recalled beef and poultry have been shipped and sold. Federal and California state agencies maintain that secrecy is necessary in order to protect the proprietary interests of the beef and poultry industries. But eighty percent of Californians believe that the public should be told the names of retail stores and restaurants that receive and sell potentially contaminated, USDA-recalled beef and poultry, according to a 2006 Field Research Corporation survey.

As for the current Farm Bill proposal, there are two serious problems.  The first is that how it’s handled—simply creating liability for the disclosure of government-held information without expressly making the information exempt from disclosure under the Freedom of Information Act—runs contrary to another pending major FOIA reform bill. The OPEN Government Act of 2007,  which the Senate passed in early August, says that when a bill would make information exempt from FOIA it should say just that and put the public on notice of the erosion.

The second problem is the overkill.  By penalizing any disclosure of any NAIS information other than by the Secretary of Agriculture to certain other officials or agencies for certain official purposes, the language would go “way beyond most existing law in imposing disproportionately harsh penalties for press activities protected by the First Amendment of the U.S. Constitution.”

Those words are from a letter protesting the secrecy provision sent to Senators by OpenTheGovernment.org and signed by Californians Aware and 27 other, mostly national, public interest and journalism organizations.

A major backer of the proposed secrecy is the National Cattlemen’s Beef Association—the trade group that tried to sue Oprah for product libel for raising mad cow concerns about the nation’s beef supply on her show.

The silly element is a different kind of overkill.  As pointed out in an e-mail by Mary Louise Zanoni, an upstate New York lawyer and leading critic of USDA’s animal tracking plans as a whole, the department currently has no sensitive information in its database, only voluntarily submitted contact information.

There are three potential data collections related to NAIS, but only one is a government database.
     1.  The government database is the National Premises Information Repository, and that is the database that, by USDA's own admission, contains only "phone book" information namely, a business name, contact person’s name, address, and phone number.
     The other two potential databases are both private databases:
     2.   Lists of individual animal ID tags assigned to particular livestock owners, which will be maintained by the companies selling the tags; and
     3.  "Animal tracking databases," which, like the tag databases,  will be created and maintained by private companies (these databases will store livestock owner's reports of movements or sales, etc., of individual livestock).
     Note that the whole federal system is voluntary.  . . But under the way NAIS is set up, the fact that the records in databases nos. 2 and 3 above are in private hands would mean that those databases are not subject to FOIA requests anyhow. . .
      So there is no reason at all to give a FOIA exemption to basic contact info, and in fact giving such an exemption would overturn well established FOIA caselaw and thus be a very bad development in the history of open government in the United States. 

Ms. Zanoni’s phone book analogy is apt, and a good illustration of the silliness dimension too often found in secrecy policy.  While the intelligence official who suggested the other day that the 9/11 era makes anonymity from government awareness an outmoded luxury staked out one dubious extreme, to say that basic directory information about a category of business is such that only government may use it probably represents the other equally dubious extreme. A federally maintained list of cattle ranches—and an opt-in list at that—is neither the first step on the road to fascism nor a data file too sensitive to let the public see.