Daniel in Brookline

Banking Data: A Mea Culpa

Since the job of public editor requires me to probe and question the published work and wisdom of Times journalists, there’s a special responsibility for me to acknowledge my own flawed assessments.

My July 2 column strongly supported The Times’s decision to publish its June 23 article on a once-secret banking-data surveillance program. After pondering for several months, I have decided I was off base. There were reasons to publish the controversial article, but they were slightly outweighed by two factors to which I gave too little emphasis. While it’s a close call now, as it was then, I don’t think the article should have been published.

Those two factors are really what bring me to this corrective commentary: the apparent legality of the program in the United States, and the absence of any evidence that anyone’s private data had actually been misused. I had mentioned both as being part of “the most substantial argument against running the story,” but that reference was relegated to the bottom of my column.

The source of the data, as my column noted, was the Society for Worldwide Interbank Financial Telecommunication, or Swift. That Belgium-based consortium said it had honored administrative subpoenas from the American government because it has a subsidiary in this country.

I haven’t found any evidence in the intervening months that the surveillance program was illegal under United States laws. Although data-protection authorities in Europe have complained that the formerly secret program violated their rules on privacy, there have been no Times reports of legal action being taken. Data-protection rules are often stricter in Europe than in America, and have been a frequent source of friction.

Also, there still haven’t been any abuses of private data linked to the program, which apparently has continued to function. That, plus the legality issue, has left me wondering what harm actually was avoided when The Times and two other newspapers disclosed the program. The lack of appropriate oversight — to catch any abuses in the absence of media attention — was a key reason I originally supported publication. I think, however, that I gave it too much weight.

In addition, I became embarrassed by the how-secret-is-it issue, although that isn’t a cause of my altered conclusion. My original support for the article rested heavily on the fact that so many people already knew about the program that serious terrorists also must have been aware of it. But critical, and clever, readers were quick to point to a contradiction: the Times article and headline had both emphasized that a “secret” program was being exposed. (If one sentence down in the article had acknowledged that a number of people were probably aware of the program, both the newsroom and I would have been better able to address that wave of criticism.)

What kept me from seeing these matters more clearly earlier in what admittedly was a close call? I fear I allowed the vicious criticism of The Times by the Bush administration to trigger my instinctive affinity for the underdog and enduring faith in a free press — two traits that I warned readers about in my first column.

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