On shining light and leaking info

28 Mar 11 | Uncategorized

David Sobel writes in the new print issue of Index on the relationship between transparency laws and leaked information. “As history has shown,” he says, “the absence of orderly and reliable procedures to ensure a free flow of important official information invites and encourages unauthorised leaks, whether the Pentagon Papers in 1971 or the WikiLeaks archive today.” That relationship – and the question it poses of cause-and-effect – has been particularly relevant to news in the US over the last two weeks, although Obama Administration officials once expected to be great champions of “Open Government” may fail to see the connection.

Transparency advocates last week gathered in Washington for “Sunshine Week,” an annual celebration of the public’s right to know and a show of force before official institutions prone to ignoring it. The National Security Archive at George Washington University marked the occasion, as it has every year since 2002, by releasing an annual audit of the government’s handling of Freedom of Information Act requests.

This snapshot is not as dire as it was last year, when only 13 of 90 federal agencies had done much of anything to meet Obama’s directive for FOIA reform. The president declared, upon taking office, that FOIA requests should now be received by agencies with a presumption of openness, reversing the Bush-era doctrine that told bureaucrats to err on the side of denying any request remotely related to FOIA’s many exemptions.

This year, the report – the Knight Open Government Survey – found that 49 of 90 agencies have started complying with requirements to update their FOIA guidelines. Ironically, 17 agencies never even responded to the National Security Archive’s FOIA request inquiring about what they’ve been doing to handle FOIA requests (that’s after 117 business days; the law mandates a response in 20). Among those agencies: the CIA, the Department of State (which perhaps figures all of its information is public now anyway) and the Department of Justice, which, as Sobel notes, was tasked by Obama with overseeing compliance with the “presumption of openness” directive.

The survey, wrote National Security Archive director Tom Blanton, reveals “some persisting deep problems including FOIA requests marooned for years in never-ending referrals among agencies.” The NSA noted that, at this rate, Obama’s first term in office will be over before all of the agencies under his control have gotten around to carrying out instructions he gave on his first day in office.

Sunshine Week ended, on Sunday, with another ominous development: Hundreds of protesters gathered, just outside of Washington, at the gate of the military base where suspected WikiLeaks leaker Bradley Manning is being held. Dozens of the protesters were arrested, including Daniel Ellsberg, the 80-year-old one-time whistleblower behind the Pentagon Papers who has called Manning’s leaks an “act of civil disobedience.” Also arrested was a retired Army colonel, Ann Wright, who resigned from the State Department in 2003 to protest the Iraq War.

The documents Manning is accused of leaking would not have come to light so soon under an efficiently processed FOIA. But the Obama Administration seems unaware in its pursuit of government leakers that there is anything inconsistent about preaching “open government” while aggressively prosecuting those – like former National Security Agency official Thomas Drake, who blew the whistle to a Baltimore Sun reporter about waste at his agency – who have tried to release information a theoretically open government would reveal.

This week, the concerns of transparency advocates have been further compounded by money woes. Open government requires not just political will, but federal resources. The Obama Administration’s many touted transparency initiatives – including the online information clearinghouses data.gov and USAspending.gov – have been financed by a $34 million Electronic Government Fund. The Sunlight Foundation, one of many groups involved in Sunshine Week, drew attention this week to the possibility that that money could be dramatically slashed during the vicious budget battle currently taking place on Capitol Hill.

“An open and accountable government is a prerequisite for democracy,” blogged Sunlight’s policy counsel, Daniel Schuman, “and keeping these programs alive costs a mere pittance when compared to the value of bringing the federal government into the sunlight.”

Public records advocates have also been reeling this week at another price tag. The magazine Mother Jones filed an information request for the emails of Mississippi Gov. Haley Barbour, widely expected to run for president as a Republican alternative to Obama. His office did respond fairly quickly, but with this: a request for $53,460.

US Twitter ruling in WikiLeaks case appealed by users

28 Mar 11 | Uncategorized

The three Twitter subscribers whose personal information has been subpoenaed by the US government in connection with its investigation into WikiLeaks have appealed the court order that declared their account details unprotected by rights to privacy and free speech.

A district judge in Virginia ruled 11 March that Twitter must turn over the account information of Icelandic parliamentarian Birgitta Jonsdottir, Dutch businessman Rop Gonggrijp and U.S. activist Jacob Appelbaum. The judge, Theresa Buchanan, further rejected a motion by lawyers for the three to publicly disclose which other Internet companies had been secretly subpoenaed by the government for personal user information in the case.

The American Civil Liberties Union and Electronic Frontier Foundation appealed the decision on Friday on behalf of the three users, asking a US district judge to overturn the earlier ruling. The lawyers argue that the public has a significant interest in obtaining access to documents in the case that remain sealed (which could reveal that companies such as Google have been put in a similarly compromising position as Twitter).

The government is seeking access to all of the users’ information — including IP addresses — across an extended period of time, regardless of whether that “Twitter-related speech” had anything to do with WikiLeaks.

“The Twitter order’s breadth is especially significant because the Parties use Twitter extensively and/or have thousands of ‘followers’ who follow what they post,” the appeal states, “and each publishes many Twitter messages wholly unrelated to WikiLeaks, including Tweets discussing Tibet and Tunisia, the Icelandic Volcano, the Transportation Security Administration, obscenity and gay marriage laws.”

The lawyers argue that because of this broad net, the subpoena does not satisfy standards under the Stored Communications Act that the government must provide “specific and articulable facts” suggesting the information is relevant to an ongoing criminal investigation.

Buchanan reasoned that the three users had already made their Twitter posts and associations public through the networking site. But the EFF and ACLU counter that the subpoena seeks significant information that is currently private — including the geographic location of the users when they posted messages, and the identity and location of every user with whom they exchanged private messages.

“It is all private,” the appeal states of the information requested by the government. “The Twitter Order thus has a chilling effect not only on the Parties’ speech and association rights, but on the rights of Twitter users in general, including the Parties’ followers, who will now fear that the government may secretly track their activities, seize their account information, and even map their movements and associations based on what they say about matters of public concern or with whom they communicate regarding political issues. As the Supreme Court has cautioned ‘[t]hese freedoms are delicate and vulnerable, as well as supremely precious in our society.'”