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Public Undersight

By Christina Koningisor. Full Text.

The laws governing transparency and accountability in government are deeply flawed and plagued by steep financial costs, high barriers to access, and widespread corporate capture. While legal scholars have suggested a wide variety of fixes, they have focused almost exclusively on legal solutions. They have largely overlooked a growing set of grassroots efforts that seek to reconstruct government information extralegally, rather than work through existing legal structures or remedy breakdowns in the formal transparency law regime.

An array of bottom-up movements to circumvent the formal transparency law and challenge the government’s monopoly on information have sprung up around the country in recent years across a wide variety of substantive areas. Activists now rely on public sources of information and extralegal monitoring to track where ICE conducts immigration raids, observe police activity in communities of color, monitor air pollution near industrial sites, and collect data on bail decisions. I refer to these efforts as forms of “public undersight.”

By ignoring these increasingly influential grassroots movements, transparency law scholars have overlooked important developments in the public’s ability to hold government actors to account. Fleshing out these extralegal forms of transparency enriches our understanding of government oversight and allows a more nuanced and complex view of the information ecosystem that sustains a liberal democracy to come to light. This Article aims to widen the aperture of the transparency law literature and bring the rise and effects of these extralegal movements into view.

In doing so, it makes three contributions. First, it offers a descriptive account of the public undersight regime, defining the concept and chronicling the various efforts and movements that fall within its scope. Second, it offers a normative account. It highlights the ways that these extralegal efforts can remedy flaws in the transparency law regime and democratize public access to government. It also explores potential drawbacks and risks.

Finally, this Article addresses gaps in the transparency law scholarship. It draws on recent works exploring extralegal activism and social movements to examine how these grassroots efforts can be used to expand our conception of public oversight and reimagine the task of government transparency and accountability. And it links the transparency law scholarship to the field of surveillance studies, using insights derived from the surveillance studies literature to illuminate the power of these grassroots transparency efforts to serve as a means of resistance—allowing communities long subjected to intrusive forms of government surveillance to co-opt the tools and techniques of the government and stare back.