Watching
and Learning
Interdisciplinary
Panel Addresses Government Surveillance and the Arts
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Artist
Arnold Mesches, left, with Dean Nils Olsen
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The
relationship of law, government and the arts - interactions that have been
contentious in the post-9/11 era - was the focus of an interdisciplinary workshop
on Sept. 10, 2004 entitled "Government Policy, Cultural Production, Personal
Privacy" The eclectic gathering was co-sponsored by the UB Law School
and the University Art Galleries, with the Baldy Center for Law & Social
Policy acting as host. Addressing such legislation as the 2001 USA Patriot
Act and the 1966 Freedom of Information Act, as well as topics such as the
artists' role as dissenters during the 1950s McCarthy era, the workshop featured
two panels of lawyers, artists and arts advocates. In conjunction with the
workshop, the UB Art Gallery mounted two exhibitions: "Arnold Mesches:
The FBI Files" and "Shutters," an international group exhibition
addressing how government monitoring affects domestic spaces.
Mesches, a well-known painter, was among the panelists. Suspected of Communist
activity in the 1950s and subjected to intensive surveillance for nearly 30
years, he obtained a copy of his 700-page FBI file through the Freedom of
Information Act; pieces of that file are incorporated into his mixed-media
works on exhibit at the UB Art Gallery.
The afternoon's first panel discussion featured Nancy Buchanan, an artist
and professor at the School of Film and Video at CalArts; David Craven, an
art history professor at the University of New Mexico; artist Mesches, also
a professor at the University of Florida; and Nils Olsen, UB Law School dean.
Olsen set the stage for the discussion with an account of the protracted legislative
history of the 1966 Freedom of Information Act, which pried open the workings
of a federal government that had jealously guarded what we now think of as
public information.
Olsen noted a seeming paradox: The same government that compiled hundreds
of pages of "intrusive and almost absurd surveillance" on Mesches
also managed to pass the Freedom of Information Act, which helped the artist
publicize the intrusion and make creative use of the material.
The act was decades in the making, Olsen said, beginning in the 1940s with
pressure from the American Society of Newspaper Editors. An Associated Press
executive director, Kent Cooper, coined the phrase "the right to know"
in 1945, and a 1953 report by the newspaper editors group concluded that government
information was systematically being withheld from the press.
It was not until 1955, however, when Congress expressed concern over the scarcity
of the information it was receiving from the Executive Branch, that momentum
for the act began to build. A subcommittee staffed by former journalists began
to develop a record of the press' frustrated attempts to get information,
and hearings revealed patterns of stonewalling by government agencies.
"It took three tries for a freedom-of-information bill to make it through
Congress and be signed into law," Olsen said. "This is a very long
and tortuous process toward legislation that continued well into the '60s."
The act finally was passed in 1966, and immediately President Lyndon B. Johnson
insisted that presidents should continue to have the right to withhold information
in the interest of national security - an insistence that has continued to
this day.
Olsen noted that one impediment to the act's full effect is a backlog of information
requests. There has been a dramatic increase in such requests, up to 24,000
in the year 2000. "It can take two to three years of constant nagging
and letter writing to obtain records even when the agency is not ultimately
refusing to produce them," Olsen said.
He also noted that the Privacy Act of 1974, which regulates the use of personal
information by federal agencies, also provides an obligation of disclosure.
"If you are looking for information," he said, "it is always
a good idea to make requests under both laws."
The second panel, moderated by UB Law School Professor George Kannar, included
Lee Albert, also a UB Law professor; Niels Bonde, an artist and professor
at Malmö Art Academy in Copenhagen, Denmark; Marjorie Heins of New York
University Law School and founding director of the Free Expression Policy
Project there; Svetlana Mintcheva, director of arts advocacy for the National
Coalition Against Censorship; and Miguel Ruiz, an assistant professor at UB's
School of Informatics.
Albert spoke to some of the provisions of the September 2001 legislation called
the "Act Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism" - the USA Patriot Act.
In contrast to the slow-to-emerge Freedom of Information Act providing public
access to government information, he said, the "much more massive, much
more comprehensive" Patriot Act providing government access to private
information took just a few weeks to pass in the wake of the 9/11 attacks.
He noted that the act lowers the "threshold of probable cause" by
allowing warrants directed at third parties with information on other individuals.
"When information is shared with a private person, almost all protection
is lost.," he said. "There is virtually no privacy issue when information
is in the hands of third parties. Think of all the information about you that
exists in the hands of third persons: Internet service providers, banks, credit
cards, doctors, hospitals, bookstores, libraries and an uncountable number
of other institutions."
Albert also pointed out that the Foreign Intelligence Surveillance Act, despite
its name, allows searches of U.S. citizens, and said that to conduct such
a search, the government must show that the object of the search is an agent
of a foreign government. Establishing probable cause is not required, and
even an action like travel to a foreign country may be considered evidence
of culpability.
The Patriot Act, he said, expands the range of objects that can be searched
for under the Foreign Intelligence Surveillance Act, and forbids institutions
that are asked about an individual - libraries or schools, for example - from
telling anyone about the request, especially the subject of the search.
"It is very difficult to assess the efficacy of the Patriot Act in the
war on terrorism," Albert said. "We just do not know what the government
learns from it. The act itself contains a gag order to prevent people from
talking about what they learn."
Albert concluded with remarks on two high-profile cases in Western New York.
The first is the arrest of UB art professor Steven Kurtz, charged after a
federal terrorism task force found in his home low-grade bacteria that he
uses in artwork on the political dimensions of biotechnology. Kurtz and an
academic friend in Pittsburgh, Albert said, were charged under a federal statute
barring fraudulent use of the mails and the telephone, for arranging the transfer
of the bacteria.
The other local case was that of the "Lackawanna Six," charged with
aiding al-Qaida. An intensive yearlong surveillance of the men, including
hundreds of search warrants, turned up nothing. .
One of the perceived problems the USA Patriot Act sought to eliminate was
the so-called "wall of separation" between law enforcement agencies
- the FBI's failure to share information with the CIA. .
