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ARTICLES

Secret Law and the Snowden Revelations:


A Response to The Future of Foreign
Intelligence: Privacy and Surveillance in a
Digital Age, by Laura K. Donohue

HEIDI KITROSSER*

INTRODUCTION

O
n June 6, 2013, the British newspaper The Guardian revealed a secret
order of the United States Foreign Intelligence Surveillance Court
(FISC) requiring Verizon, a major telecommunications provider, to
turn over all of its customer calling records to the National Security Agency
(NSA) on an “ongoing, daily basis” for a three- month period.1 This article
turned out to be the first trickle in a wave of blockbuster stories published
by The Guardian and The Washington Post, among other outlets, based on
leaks from former NSA contractor Edward Snowden. 2
The stories detailed a host of secret NSA surveillance operations. 3 The
Verizon order, for example, was one among many similar orders issued to
major telecommunications providers over a nine-year period directing the
providers to turn over all of their customers’ telephony metadata to the
NSA.4 Although metadata does not include a communication’s contents,
the information that it does encompass—including the identity and poten-

* Robins, Kaplan, Miller & Ciresi Professor of Law, University of Minnesota Law School.
1 Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, THE

GUARDIAN (June 6, 2013), https://perma.cc/AXH5-G8NR.


2 See Glenn Greenwald, Ewen MacAskill & Laura Poitras, Edward Snowden: The Whistle-
blower Behind the NSA Surveillance Revelations, THE GUARDIAN (June 11, 2013),
https://perma.cc/4JU3-P5ND. See, e.g., Joshua Eaton, Timeline of Edward Snowden’s Revelations,
AL JAZEERA AM., (June 5, 2013), https://perma.cc/GUL5-3S5F.
3 See Eaton, supra note 2.
4 LAURA K. DONOHUE, THE FUTURE OF FOREIGN INTELLIGENCE: PRIVACY AND SURVEILLANCE
IN A DIGITAL AGE 48 (2016).

5
6 New England Law Review [Vol. 52 | 1

tially the location of communicants and the length of each exchange 5—


enables recipients to piece together substantial information about individ-
uals, including their personal relationships, political commitments, and
health concerns.6 Other NSA programs revealed by the stories included
bulk e-mail metadata collection and bulk Internet content collection, the
latter including e-mail and voice communications.7
These revelations have serious constitutional, statutory, and policy im-
plications. The bulk metadata programs alone have credibly been chal-
lenged as violating the Fourth Amendment to the U.S. Constitution, ex-
ceeding statutory limits, and constituting bad policy. 8 The experiences of
the FISC and the House and Senate Intelligence Committees with the pro-
grams also present important questions about the efficacy of particular
oversight mechanisms.9 The existence of a longstanding, secretive program
implicating the rights of Americans, possibly in violation of statutory lim-
its, also raises the specter of secret law.10 More so, these revelations and
their implications hardly exist in a historical vacuum. Most immediately,
they call to mind, and are traceable partly to, controversial surveillance
programs of the George W. Bush administration. 11 They also echo aspects
of the findings and conclusions of the famed congressional proceedings—
particularly the Church Committee hearings—of the 1970s on surveillance
by the U.S. intelligence community. 12 Reaching back further still, concerns
about abusive surveillance practices were foremost in the minds of the na-

5See id. at 18.


6See id. at 18, 39–41; Greenwald, supra note 1.
7 See DONOHUE, supra note 4, at 54–57; Barton Gellman & Laura Poitras, U.S., British Intelli-

gence Mining Data from Nine U.S. Internet Companies in Broad Secret Program, WASH. POST (June
7, 2013), https://perma.cc/5HMQ-UW5Z.
8 See, e.g., ACLU v. Clapper, 785 F.3d 787, 810 (2d Cir. 2015); DONOHUE, supra note 4, at 39–

53, 94–97. See generally Laura K. Donohue, Bulk Metadata Collection: Statutory and Constitutional
Considerations, 37 HARV. J.L. & PUB. POL’Y 757, 836–97 (2014); Jennifer Granick, The Surveillance
State’s Legalism Isn’t About Morals, It’s About Manipulating the Rules, JUSTSECURITY (Nov. 13,
2014), https://perma.cc/W5Y3-P84S.
9See DONOHUE, supra note 4, at 45–47, 138–50.
10See DONOHUE, supra note 4, at 146(“[A] separate body of secret law has evolved in ways
not anticipated by Congress in 1978.”). For discussions of the concept of secret law more
broadly, see, e.g., ELIZABETH GOITEIN & BRENNAN CENTER FOR JUSTICE, THE NEW ERA OF SECRET
LAW (2016); Dakota S. Rudesill, Coming to Terms with Secret Law, 7 HARV. NAT’L SEC. J. 241
(2015).
11 See DONOHUE, supra note 4, at 45–53.

12 See DONOHUE, supra note 4, at 4–12; Richard A. Clarke, et al., Liberty and Security in a

Changing World: Report and Recommendations of The President’s Review Group on Intelligence and
Communications Technologies, OFF. OF THE DIRECTOR OF NAT’L INTELLIGENCE 114 (Dec. 12, 2013),
https://perma.cc/S542-89SJ.
2017] Secret Law 7

tion’s founders.13
It is no easy task to unpack and accessibly explain the Snowden revela-
tions, the programs that they illuminate, and the relevant historical context.
It is a more daunting undertaking still to identify and address the major
constitutional, statutory, and policy issues that the disclosed programs
raise. Laura Donohue, a professor at Georgetown University Law Center,
accomplishes these feats in a remarkably concise and highly readable book
entitled, The Future of Foreign Intelligence: Privacy and Surveillance in a Digital
Age.14
Donohue focuses on two main categories of revealed programs: those
involving meta-data collection and access and those entailing content col-
lection and access. She takes readers on a sweeping tour of the programs’
features, their evolving legal justifications within the executive branch, the
roles played by Congress and the FISC in enabling and challenging them,
the programs’ legal shortcomings, and the broader historical context.
Donohue also flags larger issues that transcend, but are very much illumi-
nated by, the particular programs that she explores. In particular, she cites
the phenomenon of secret law. She also discusses the closely related puzzle
of how to design oversight mechanisms that accommodate justifiable se-
crecy while protecting democratic accountability and the rule of law. The
constitutional and policy imperatives of privacy also are deeply woven into
the book’s fabric. Much of Donohue’s discussion touches, at least implicit-
ly, on the negative relationship between secret law and the ability of indi-
viduals to keep their own secrets—that is, to enjoy personal privacy.
In this short essay, I use Donohue’s excellent book as a jumping-off
point to reflect on the concept of secret law. I consider the light that
Donohue’s discussion sheds on four aspects of the concept: the definition
of secret law, why secret law matters, the mechanisms that facilitate secret
law, and the accountability tools that help to chip away at secret laws.

ANALYSIS

I. The Future of Foreign Intelligence and the Meaning and Importance of


Secret Law

In recent years, academics, legislators, and other commentators have


expressed growing concern about the phenomenon of secret law. 15 As Pro-

13 See generally DONOHUE, supra note 4, at 75–94.


14 See DONOHUE, supra note 4.
15 See generally GOITEIN, supra note 10; Jonathan Hafetz, A Problem of Standards? Another

Perspective on Secret Law, 57 WM. & MARY L. REV. 2141 (2016); Rudesill, supra note 10; Sudha
8 New England Law Review [Vol. 52 | 1

fessor Dakota Rudesill helpfully defines the term, secret law consists of
“legal authorities that require compliance that are classified or otherwise
withheld from the public.”16 Some of the attention to secret law has focused
on classified annexes to legislation.17 Most of the commentary, however,
has been directed toward two non-legislative sources of authority: classi-
fied legal opinions by the FISC or the Foreign Intelligence Surveillance Re-
view Court (FISRC), and unpublished executive branch legal opinions, typ-
ically from the Justice Department’s Office of Legal Counsel (OLC).18
Commentators explain that legal opinions “such as OLC and FISC opin-
ions” can constitute secret law when they “provide precedential value or
otherwise binding constructions of law.”19
Critics of FISC, FISRC, and OLC secrecy do not argue that legal opin-
ions must never be secret. They take the view, however, that such secrecy
is rarely, if ever, justified, and at minimum is deeply problematic when the
opinions constitute law making. The arguments against secret legal opin-
ions are premised, in short, on two interlocking claims: some such opinions
amount to law and secret law is intrinsically problematic.
Defenders of secret legal opinions do not dispute that secret law is
troubling. Rather, they challenge the notion that FISC, FISRC, or OLC opin-
ions can constitute secret law.20 Perhaps most fundamentally, they argue
that such opinions—at least when they consist of statutory interpretation—

Setty, No More Secret Laws: How Transparency of Executive Branch Legal Policy Doesn’t Let the Ter-
rorists Win, 57 U. KAN. L. REV. 579 (2009); Secret Law and the Threat to Democratic and Accountable
Government: Hearing Before the Subcomm. on the Constitution of the Comm. on the Judiciary, 110th
Cong. (2008).
16Rudesill, supra note 10, at 249.
17See GOITEIN, supra note 10, at 28–31; Rudesill, supra note 10, at 260–83.
18 GOITEIN, supra note 10, at 3 (“OLC opinions and FISA Court opinions are the only two

manifestations of secret law that regularly make headlines”); Rudesill, supra note 10, at 246,
253, 283 (describing commentators’ emphasis on FISC and OLC opinions).
19 Rudesill, supra note 10, at 249; see, e.g., GOITEIN, supra note 10, at 36–37 (explaining OLC’s

role as “quasi-judicial interpreter of the law”); GOITEIN, supra note 10, at 57–58 (discussing
FISC’s role in effectively making law on occasion).
20 See Secret Law Hearing, supra note 15, at 4 (opening statement of Sen. Sam Brownback)

(disputing notion that OLC legal opinions constitute “secret law”); Secret Law Hearing, supra
note 15, at 6 (testimony of John P. Elwood, Deputy Ass’t Att’y Gen., Office of Legal Counsel)
(stating that the OLC’s “confidential legal advice” does not “constitute ‘secret’ law”); Secret
Law Hearing, supra note 15, at 9 (testimony of Bradford A. Berenson, Partner, Sidley & Austin,
LLP) (taking view that FISC opinions, OLC opinions, and executive orders are not secret law).
Cf. Christopher A. Donesa, Is “Secret Law” Really Either? Congressional Intent, Legislative Process,
and Section 215 of the USA Patriot Act, 3 NAT’L SEC. L.J. 101, 118–23 (2014) (secret legal interpre-
tations of Section 215 of the Patriot Act by the FISC and the executive branch do not make Sec-
tion 215 secret law).
2017] Secret Law 9

merely interpret, rather than make law,21 and that the interpreted statutes
themselves are publicly known.22 Those in the “not secret law” camp also
argue that secret OLC and FISC opinions are not law because they do not
“regulate the primary conduct of private citizens,” but rather govern be-
havior within the executive branch.23
Donohue’s book sheds light on this debate by illuminating the far-
reaching impact that secret FISC, FISRC, and OLC opinions have had on
surveillance practices and individual privacy since 9/11; the opinions’ often
counter-intuitive relationships to the statutes that they purport to interpret;
and the serious constitutional questions raised by the surveillance practices
that the opinions blessed. These examples and analyses vividly demon-
strate why the opinions at issue deserve the moniker “secret law,” and why
secret law poses such a threat to the rule of law and democratic accounta-
bility. Specifically, such opinions can covertly reinvent rather than interpret
existing statutes, and can bear heavily on the rights of individual citizens.
For example, Donohue chronicles the executive’s shifting, secret justifi-
cations for bulk collection of telephony and Internet metadata. The OLC’s
initial assessments of these programs were so closely held that even the
NSA was not allowed to read them 24 and so weak that they were repudiat-
ed by the OLC after their author, John Yoo, left OLC and a new OLC head,
Jack Goldsmith, was appointed.25 The replacement memoranda themselves
justified the programs through a combination of strained statutory inter-
pretation and a very aggressive reading of presidential power under Arti-
cle II of the Constitution.26
In 2006, the administration secretly shifted the bulk collection of te-
lephony metadata to Section 215 of the Patriot Act, which was codified at

21 See, e.g., Donesa, supra note 20, at 105–07, 118–23 (explaining that Section 215 of the Pa-

triot Act itself is publicly known and that non-public interpretations do not alter the statute’s
transparency).
22 The picture would be more complicated, of course, were the “secret law” claim based
partly on the fact of statutory secrecy in the form of classified annexes or otherwise. See
GOITEIN, supra note, 10 at 29–31; Rudesill, supra note 10, at 260 (citing sources that discuss the
use of classified annexes to statutes and the statutory incorporation of non-public legislative
history).
23 Secret Law Hearing, supra note 15, at 9 (testimony of Bradford A. Berenson, Partner,
Sidley Austin, LLP). In the case of OLC opinions, they make the related argument that the
opinions constitute legal advice about actual or contemplated policies but do not themselves
set policy; see, e.g., Secret Law Hearing, supra note 15, at 4 (opening statement of Sen. Sam
Brownback).
24 See DONOHUE, supra note 4, at 19–20.

25 See DONOHUE, supra note 4, at 20–23, 45.

26 See DONOHUE, supra note 4, at 22–24.


10 New England Law Review [Vol. 52 | 1

18 U.S.C. § 1861.27 Section 215 authorizes the FISC to compel the produc-
tion of “any tangible things” including business records, when the gov-
ernment provides “‘a statement of facts showing that there are reasonable
grounds to believe that the tangible objects sought are relevant’ to an au-
thorized investigation intended to protect ‘against international terrorism
or clandestine intelligence activities.’”28 The 2006 Verizon order on which
the first Snowden leak story centered was a FISC directive to turn over
bulk telephony metadata under Section 215.29
The Verizon order and the many similar FISC orders relied on a tenu-
ous interpretation of the word “relevant” that borrowed from the logic of
an earlier secret FISC opinion authorizing bulk internet and telephony
metadata collection.30 In that earlier, classified ruling, FISC Judge Colleen
Kollar-Kotelly “accepted the government’s argument, made without op-
posing counsel, that all Internet metadata was ‘relevant’ to terrorism inves-
tigations.”31 The judge agreed that the “‘collection of both a huge volume
and high percentage of unrelated communications’ was necessary to identi-
fy a smaller number of germane communications.” 32
This reasoning, Donohue protests, flies in the face of the Foreign Intel-
ligence Surveillance Act’s (FISA’s) central purpose: to prevent “widespread
collection absent particularized suspicion.”33 The Second Circuit took a
similar view in May 2015, holding that Section 215 does not authorize bulk
telephony metadata collection. The court “rejected the government’s ar-
gument that ‘relevant’ should be understood as anything potentially bear-
ing upon, connected with, or pertinent to a specified subject matter.” 34
Donohue forcefully makes the case that the bulk metadata collection
programs were antithetical to the letter and spirit of the relevant public
laws, that the legal opinions of the executive branch and of FISC did not

27 See DONOHUE, supra note 4, at 23–25, 31.


28 Clarke, et al., supra note 12, at 81–82 (citing Section 215); see also DONOHUE, supra note 4,
at 25–26.
29 Amy Davidson Sorkin, The N.S.A.-Verizon Scandal, THE NEW YORKER (June 6, 2013),

https://perma.cc/3E6P-JYNN.
30 See DONOHUE, supra note 4, at 47–48.
31 See DONOHUE, supra note 4, at 48.
32 DONOHUE, supra note 4, at 45.

33 DONOHUE, supra note 4, at 46.

34 DONOHUE, supra note 4, at 51. As for the internet metadata program, apparently it was

discontinued by the government in 2011, two years prior to Snowden’s disclosures. For more
on the fate of that program, see Timothy Edgar, Bulk NSA Internet Program Shows the Complete
Incoherence of Surveillance Law, LAWFARE (Nov. 20, 2015, 9:45 AM), https://perma.cc/6Y2L-
FMCT (concluding that “the widely-held theory that the NSA had figured out another way to
obtain the data – with less oversight – is correct.”).
2017] Secret Law 11

resolve these difficulties but themselves were deeply erroneous, and that
secrecy—including the ex parte nature of FISC proceedings—enabled such
shoddy legal reasoning. Donohue makes similar arguments with respect to
the NSA’s bulk content collection programs, which also were exposed by
the Snowden leaks.35
For all of its probing into failures of legality and transparency, The Fu-
ture of Foreign Intelligence does not treat these ideals solely as ends in them-
selves. Rather, the book wears its deepest commitment—to personal priva-
cy—on its every page, and Donohue returns frequently to the privacy
deprivations enabled by a “body of secret law.” 36 Indeed, Donohue thor-
oughly and persuasively makes the case that the bulk collection pro-
grams—of both the metadata and content variety—endanger the privacy of
every U.S. citizen, however unconnected one may be to terrorist activity. 37
She also convincingly argues that bulk collection orders amount to general
warrants, and that the latter strike at the very heart of the Fourth Amend-
ment from any reasonable interpretive perspective.38
Although The Future of Foreign Intelligence uses the phrase “secret law”
just a single time,39 its examples and analyses make plain that secret OLC
and FISC opinions indeed can constitute secret law. The OLC and FISC
opinions of which Donohue writes blessed programs that deeply impacted
the privacy rights of millions of Americans. They did so partly through
statutory interpretations that at best were highly contestable, while the
opinions’ secrecy made meaningful contestation impossible.

II. The Infrastructure of Secret Law and Tools to Dismantle It

Beyond its contributions to debates over secret law’s meaning and sig-
nificance, The Future of Foreign Intelligence helps to illuminate—and pro-
vides a jumping-off point to think further about—the factors that create
and sustain secret law. Perhaps the most obvious factor in the case of FISC
is the very scope of the court’s opacity—with its proceedings off limits not
only to the public, but to any parties beyond the government, and with no
mechanism to appeal its pro-government rulings. Under such conditions,
as Donohue notes, it is not surprising that the court would fall prey to mis-
sion creep, moving beyond its historically limited role as adjudicator of
case-by-case warrant requests to issue sweeping legal rulings. 40

35 See generally DONOHUE, supra note 4, at 54–74 (discussing content collection).


36 See DONOHUE, supra note 4, at 146.
37 See DONOHUE, supra note 4, at 39–45, 55–56, 72–74, 98–116.
38 See DONOHUE, supra note 4, at 75–97.
39 See DONOHUE, supra note 4, at 146.
40 DONOHUE, supra note 4, at 144–46; see, e.g., Orin S. Kerr, A Rule of Lenity for National Secu-
12 New England Law Review [Vol. 52 | 1

Another factor is the failure of congressional oversight. For example,


Donohue observes that the congressional intelligence and judiciary com-
mittees, though informed of the government’s bulk content collection pro-
gram under a questionable interpretation of Section 702 of the Patriot Act,
offered little pushback before the Snowden revelations brought the pro-
gram to public attention.41 More so, many members of Congress failed to
take—and in some cases were actively prevented by Congressional leader-
ship from taking—advantage of an opportunity to read a classified report
about the program “more than a year before the Snowden revelations.” 42
Donohue attributes Congress’s failings mainly to a lack of political will,
although she acknowledges that there are logistical barriers to congress-
persons accessing and responding to classified information. 43
Countless other factors play a role in creating and maintaining secret
law. For example, I have written elsewhere of the support that secret law
receives from actors in all three branches of government, and in public and
academic discourse, who aggressively interpret the President’s powers un-
der Article II of the Constitution.44
Nonetheless, opponents of secret law are not without grounds for some
optimism. Snowden’s revelations and subsequent developments them-
selves amount to a case study in what Seth Kreimer has called “the ecology
of transparency,” whereby a loose chain of transparency agents—including
leakers, freedom of information laws, “federal civil servants with integrity,
internal watchdogs, reasonably open opportunities to publish and share
information, and a set of civil society actors capable of pursuing prolonged
campaigns for disclosure”—buttress one another and protect against the
failure of any one point in the chain. 45 Together, such mechanisms pose a
powerful challenge to regimes of secret law. Indeed, Snowden’s leaks and
the resulting publications sparked a variety of subsequent information re-
leases, ranging from voluntary submissions to FOIA request responses to
litigation-driven disclosures.46

rity Surveillance Law, 100 VA. L. REV. 1513, 1513–14 (2014) (citing FISC’s transformation into a
“lawmaking court”).
41 DONOHUE, supra note 4, at 66–68.

42 DONOHUE, supra note 4, at 66.

43 DONOHUE, supra note 4, at 66–68.

44 HEIDI KITROSSER, RECLAIMING ACCOUNTABILITY 100–06 (2015).

45 Seth Kreimer, The Ecology of Transparency, 10 U. PENN. J. CONST. L. 1011, 1017, 1075 (2008).

46 See, GOITEIN, supra note 10, at 59; Yochai Benkler, A Public Accountability Defense for Na-

tional Security Leakers and Whistleblowers, 8 HARV. L. & POL’Y REV. 281, 281 (2014); Rainey Reit-
man, 3 Years Later, the Snowden Leaks Have Changed How the World Sees NSA Surveillance,
ELECTRONIC FRONTIER FOUND. (June 5, 2016), https://perma.cc/B89V-2VDD.
2017] Secret Law 13

Snowden’s revelations and related disclosures also have generated


calls for reform, both of surveillance practices themselves and of the factors
that enable secret law. Such calls have come from a variety of sources in-
cluding federal courts, a presidential review group, the Privacy and Civil
Liberties Oversight Board, and the U.S. Congress. 47 Such calls also have
come from engaged public intellectuals through vehicles like The Future of
Foreign Intelligence.48
One prominent set of steps toward reform is contained in the USA
Freedom Act, which became law in June 2015.49 The Act “requires the re-
lease of a redacted or summarized version of all significant FISA Court
opinions.”50 It also “require[s] the establishment of a panel of independent
attorneys (. . . amici . . . ) on whom the [FISC] can call to provide perspec-
tives other than the government’s.”51 Among the first amici appointed by
FISC is the author of The Future of Foreign Intelligence, Laura Donohue.52

CONCLUSION

Donohue and others are quick to acknowledge that the reforms initiat-
ed by the USA Freedom Act are far from complete. For instance, the Act
leaves it to executive branch officers to determine whether a FISC opinion
is “significant” and thus must be made public in some form. Elizabeth
Goitein of the Brennan Center for Justice observes that, “[t]here is no exter-
nal check to prevent the executive branch from interpreting the term ‘sig-
nificant’ as creatively as it interpreted the term ‘relevant.’” 53 The Act’s

47 See supra note 46 and accompanying text; see, e.g., President’s Review Group Report, su-
pra note 12; Privacy & Civil Liberties Oversight Board, Report on the Telephone Records Program
Conducted Under Section 215 of the USA Patriot Act and on the Operations of the Foreign Intelligence
Surveillance Court (Jan. 23, 2014), https://perma.cc/8SNR-HDHQ. See generally, ACLU v. Clap-
per, 785 F.3d 787, 826 (2d Cir. 2015) (discussing the Supreme Court’s holding that the tele-
phone metadata program exceeds the scope of what Congress intended under Section 215).
48 Indeed, the final chapter of The Future of Foreign Intelligence is called “Reform.” It con-

tains a number of thoughtful suggestions, including revisions to the FISC and congressional
intelligence committee appointment processes, and to other aspects of those bodies to enhance
their independence from their intelligence community. DONOHUE, supra note 4, at 138–50.
49 Uniting & Strengthening America by Fulfilling Rights and Ensuring Effective Discipline
Over Monitoring Act of 2015, Pub. L. No. 114–23, 129 Stat. 268.
50 GOITEIN, supra note 10, at 25.

51 GOITEIN, supra note 10, at 22.

52 Cyrus Farivar, America’s Super-Secret Court Names Five Lawyers as Public Advocates, ARS

TECHNICA (Nov. 28, 2015), https://perma.cc/DW3U-R59R. An editor’s note at the beginning of


The Future of Foreign Intelligence notes that Donohue wrote the book “before the United States
government granted her access to any classified information.” DONOHUE, supra note 4, at xiii.
53 GOITEIN, supra note 10, at 59.
14 New England Law Review [Vol. 52 | 1

amicus appointment provision, too, is quite modest. Donohue points out


that, “[i]t has yet to be determined . . . how frequently amici will participate
in questions before the court.”54
The Act, like other actions and investigations undertaken in response
to the Snowden revelations, is necessarily partial and imperfect. Such is
the nature of all reform and all policy-making. Feedback and re-evaluation
thus are crucial protectors of good policy-making, democratic accountabil-
ity, and individual rights. Yet these protective mechanisms cannot be trig-
gered when the laws themselves are secret. The Future of Foreign Intelligence
does very important work by accessibly conveying a complex, once-secret
body of surveillance law, explaining the costs of that body of law to per-
sonal privacy, and proposing thoughtful means to better reconcile intelli-
gence needs with privacy and legal transparency going forward.

54 DONOHUE, supra note 4, at 147; see also GOITEIN, supra note 10, at 22.