Senators Afraid Of 'Chilling Effects' On Those Poor, Poor Lobbyists If Scientists Disclose Which Large Company Funded Research

from the but-think-of-the-lobbyists dept

David Michaels, the head of OSHA (Occupational Safety & Health Administration), also wrote the book Doubt is Their Product: How Industry's Assault on Science Threatens Your Health. You can guess what it's about based on the subtitle. The title itself comes from a 1969 memo from the tobacco giant Brown and Williamson discussing a plan to try to obscure the scientific evidence that smoking is dangerous with a flood of competing, sponsored "scientific" research in an effort to sow doubt. The memo announced "doubt is our product, since it is the best means of competing with the 'body of fact' that exists in the mind of the general public." Once put in charge of OSHA, he added a basic request (not a requirement) that anyone submitting scientific comments with the agency should also disclose any possible financial conflict of interest. He did not say that such submissions would be ignored, just in the interest of transparency, financial conflicts of interest should be disclosed.

However, as Larry Lessig explains, a bunch of Senators have gone absolutely apeshit over this idea that scientists be asked to disclose financial conflicts, claiming that it could create a "chilling effect."

Led by Tennessee’s Lamar Alexander, these senators objected (PDF) to the agency’s request that financial conflicts of interest be disclosed. The Senators were “very concerned about OSHA’s attempt to have commenters disclose their financial backers.” As Liz Wolgemuth, a staffer working for Alexander’s committee explained, “the chilling effect the financial disclosure could have seems counter to the idea of robust inclusion of a diverse set of ideas and views to inform the rule-making.

As Lessig points out, what exactly is the "chilling" effect here?

The “chilling effect?” Seriously? What’s the chill? That the shrinking violets of the cement industry will be too afraid to hire lobbyists to present their views about the (non-) dangers in inhaling silica?

Again, no one is saying that any such evidence would be ignored. But more information and transparency concerning information presented to the government seems to only create a chilling effect if the financial backers of that information don't want their names associated with it. Furthermore, such disclosures are common (even more strongly required) in many other places, from academic journals to court filings to political donations. It's difficult to see the complaint of these Senators as anything more than a cynical attempt to protect lobbyists and the practice of paying for bogus scientific studies.

Filed Under: chilling effects, david michaels, funding, lamar alexander, lobbyists, osha, scientific research, transparency

Even With Its 'Public Facing' Tumblr Blog, The Intelligence Community Is Still Avoiding The Surveillance Discussion

from the IC-begrudges-the-record dept

We've discussed this several times before, almost always as a preface to any document release by the Office of the Director of National Intelligence. NSA-related documents are now being declassified and handed over to public. James Clapper, the Director of National Intelligence, delivers each document dump with a canned statement that almost always includes this sentence:

These orders are available at the website of the Office of the Director of National Intelligence (http://www.dni.gov), and ODNI’s public website dedicated to fostering greater public visibility into the intelligence activities of the Government (IContheRecord.tumblr.com).

But the ODNI's website isn't necessarily as dedicated to this cause as Clapper's introductory statement makes it appear. As we've pointed out before, nearly every document released has been the result of court orders in FOIA lawsuits pursued by the ACLU, EFF and EPIC. Others have been compelled by executive orders (Obama's surveillance reforms) or are nothing more than official statements and press releases. There's no transparency here, no intrinsic effort to "foster greater public visibility." The agency has been forced out of the shadows and its awkward embrace of openness is nowhere more apparent than at its Tumblr blog.

The fact that a national security agency is operating a public blog that's more than just press releases and help wanted ads is very unusual. But underneath the talk of connecting with the public, there's very little going on here that isn't self-serving or fulfillment of legal obligations.

The Guardian notes, however, that a recent post finally did what no other post to date had done: acknowledge that the documents in question were forced out of the NSA's hands.

Amie Stepanovich was doubly rewarded when she won her transparency lawsuit against the US government. Not only did Stepanovich, formerly a lawyer for the Electronic Privacy Information Center, receive some of the surveillance documents she sued to obtain, but the office of the director of national intelligence credited her effort on its Tumblr.

Here's the ODNI's official release statement:

On Friday, the Attorney General through the Department of Justice, declassified and released 24 documents that were responsive to a portion of a Freedom of Information Act request by the Electronic Privacy Information Center. These one-page documents, titled “The Attorney General’s Report on the Use of Pen Registers and Trap and Trace Devices under the Foreign Intelligence Surveillance Act,” are reports to the Congressional intelligence and judiciary committees that identify how many applications the U.S. Government filed with the Foreign Intelligence Surveillance Court (FISC) seeking authorization to use pen registers and/or trap and trace devices, and how many the FISC authorized, during specific time periods. The documents cover the time period from 2001 through 2012.

Will this sort of acknowledgement accompany future releases? It's hard to say. While the short intro points out that the documents' release was compelled, there's nothing that indicates this sudden burst of honesty was. Did someone finally explain to Clapper's office that "fostering public visibility" means identifying the impetus behind the document releases? Ultimately, as long as the documents are freed, those compelling the releases aren't too concerned about the ODNI's opaque (and lightly self-aggrandizing) statements.

“As far as we’re concerned, the government can explain the disclosures however they’d like to. The important fact is that most of this information should never have been secret in the first place. We’ll continue to press the government to disclose more,” said ACLU attorney Alexander Abdo.

“EFF’s number one priority is making sure this information is provided to the public, whether or not the government wants to give us credit for it,” said EFF lawyer Mark Rumold.

Hopefully, this is the process going forward. The NSA isn't really making itself a part of the surveillance debate. It's only fulfilling obligations. The public should be aware of how little it's actually doing to increase visibility. Just using the blog-platform-du-jour isn't enough. The fact is that the US government's legal reps did all they could to block the release of these documents, which means the administration itself is just as complicit in the agency's effort to avoid the debate.

Filed Under: foia, icontherecord, intelligence community, james clapper, odni, transparency, tumblr

Don't Fall For Misleading Story Being Spread By NSA Suggesting Tech Companies Lied About PRISM

from the bogus dept

Update: With little fanfare, the Guardian has now added a note (at the bottom) saying that it has adjusted the story because of the initial misleading claims:

This article was amended on 20 March 2014 to remove statements in the original that the testimony by Rajesh De contradicted denials by technology companies about their knowledge of NSA data collection. It was also updated to clarify that the companies challenged the secrecy surrounding Section 702 orders.

I wonder how many people who have been repeating the initial misleading claims will go back and see that change? Original story below:

I'm seeing a bunch of folks passing around a story by Spencer Ackerman at The Guardian, claiming that tech companies lied about their "denials" of PRISM. The story is incredibly misleading. Ackerman is one of the best reporters out there on the intelligence community, and I can't recall ever seeing a story that I think he got wrong, but this is one. But the storyline is so juicy, lots of folks, including the usual suspects are quick to pile on without bothering to actually look at the details, insisting that this is somehow evidence of the tech companies lying.

So, let's look at what actually happened. The report is based on statements by Rajesh De, the NSA general counsel, who was testifying before the US's Privacy and Civil Liberties Oversight Board (PCLOB). Here's the part that's catching everyone's attention:

Asked during at a Wednesday hearing of the US government’s institutional privacy watchdog if collection under the law, known as Section 702 or the Fisa Amendments Act, occurred with the “full knowledge and assistance of any company from which information is obtained,” De replied: “Yes.”

When the Guardian and the Washington Post broke the Prism story in June, thanks to documents leaked by whistleblower Edward Snowden, nearly all the companies listed as participating in the program – Yahoo, Apple, Google, Microsoft, Facebook, Paltalk, AOL – claimed they did not know about a surveillance practice described as giving NSA vast access to their customers’ data. Some, like Apple, said they had “never heard” the term Prism.

Everything stated above is technically true, but misleading. The problem is that what the companies denied is not what De is talking about. What they denied is what both the Washington Post and the Guardian initially implied: that the NSA had "direct access" to the servers of the nine companies named under PRISM, with the clear implication of the stories being that direct access was to basically all servers. All of the companies denied that level of access (which was and remains true). They also (as Ackerman does mention) denied knowing what PRISM was. Within a day or so, it became quite clear that "PRISM" was merely orders under Section 702 of the FISA Amendments Act -- which is what eventually lead a bunch of those same companies to sue the government, saying they wanted to reveal the details of the Section 702 orders that they got, including how many orders they received and how many user accounts were impacted by those orders. The very reason they filed that lawsuit was in an attempt to prove that PRISM/Section 702 orders were never about full access to everything, but rather more targeted requests approved of by the FISA court (it's fair to point out that the NSA's definition of "targeted" is more broad than you and I would like, but that's a separate issue).

In January, that lawsuit was settled, with the DOJ giving companies (for the first time) the ability to reveal (in quite a limited way) how many FISA orders they received and how many "customer selectors targeted." And, in fact, a bunch of companies have done so. Here, for example, we wrote about Yahoo and Google's reporting of those requests. For example, from January to June of 2013, Google received between 0 and 999 FISA orders, including 9000-9999 user accounts targeted. During the same period, Yahoo received between 0 and 999 such orders, targeting between 30,000 and 30,999 accounts. Much of that is PRISM -- and no one has ever denied that. It's unfortunately obfuscated, because the "FISA orders" lump together the Section 702 "PRISM" orders with separate Section 107 orders, and (worse) because the companies can't really reveal users impacted, just customer selectors targeted. That obfuscation is a big problem, but is entirely unrelated from the original reporting on PRISM and the companies' response.

So, yes, of course companies were aware of the Section 702 orders they get. That's the only possible way they can comply with Section 702 orders. And, certainly, the only way they could report on how many such orders they got. What they denied was the original reporting which suggested, incorrectly, that PRISM was a much broader program, that involved direct access to these companies systems, allowing them to suck out just about anything. That was never true, and that was what they were denying. The lawsuit and the transparency reports were all about (attempting to) clear up that confusion, showing that these companies simply comply with Section 702 orders, rather than grant broad access to all accounts, as the original reports implied. And, in fact, the release of those transparency reports provided at least a little transparency (tragically muddied by the DOJ's requirements). There are separate issues about other ways that the NSA got access to these companies information, such as hacking into datacenters connections, but that's unrelated to PRISM.

Ackerman has been following all of this, so I'm both confused and surprised for why he'd fall for De's attempt to suggest that the companies were lying. Even more bizarre is his claim that De's comments were "contradicting the tech companies about the firms' knowledge of Prism." But that's not true. De is saying the companies knew about Section 702 orders, which of course they did. Otherwise, why would they have been fighting to reveal the details -- and why else would they have posted the details to their transparency reports? I find it hard to believe that Ackerman doesn't know about the very transparency reports from the companies that show that the companies were (of course) aware of the Section 702 orders he says in the article they denied. They never denied such orders.

If anything, this feels a lot more like the NSA (as the NSA does) using careful language choices to attack-by-false-implication the tech companies who have recently been fighting hard to encrypt more data to make it harder for the NSA to crack into their systems (not under PRISM, but under Executive Order 12333). In the end, De's claim is a non-story, turned into a misleading story.

Filed Under: nsa, pclob, prism, rajesh de, section 702, spencer ackerman, surveillance, transparency

UK Foreign Office Bars Public From Attending Conference On How It Will Finally Release Illegally-Withheld Public Records

from the taking-the-'public'-out-of-'public-records' dept

The UK has a rule that nearly all government documents become public after a certain time has elapsed. But last year, it was revealed that the UK's Foreign Office had failed to release a huge store of older documents -- over a million of them:

The Foreign Office has unlawfully hoarded more than a million files of historic documents that should have been declassified and handed over to the National Archives, the Guardian has discovered.

The files are being kept at a secret archive at a high-security government communications centre in Buckinghamshire, north of London, where they occupy mile after mile of shelving.

Most of the papers are many decades old -- some were created in the 19th century -- and document in fine detail British foreign relations throughout two world wars, the cold war, withdrawal from empire and entry into the common market.

They have been kept from public view in breach of the Public Records Acts, which requires that all government documents become public once they are 30 years old -- a term about to be reduced to 20 years -- unless the department has received permission from the lord chancellor to hold them for longer. The secret archive is also beyond the reach of the Freedom of Information Act.

Now that it has been forced to admit that it holds all these records of great historical -- and often great political -- interest, the Foreign Office is making them public at last. But as The Guardian reports, it seems it still doesn't quite get what that means:

The UK Foreign Office is holding a conference to explain how it will finally place into the public domain millions of public records that it has unlawfully held for decades -- but is refusing to allow members of the public to attend.

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Filed Under: public records, secrecy, transparency, uk, withheld

Court Says FBI's Secret GPS Tracking Memos Can Stay Secret

from the government-states-black-toner-shortage-as-primary-motivator dept

Back in January 2013, the ACLU managed to pry loose two secret memos on the FBI's GPS tracking from the DOJ with a FOIA request. The only problem was that the request didn't actually free much information. The responsive documents consisted of a few scattered paragraphs … and 111 pages of black ink.

The ACLU objected to this mockery of the words "freedom" and "information," noting that secret interpretations of existing laws is exactly the sort of thing the Freedom of Information Act was designed to discourage, not protect. So, the ACLU sued the government in hopes of being given something a little less redacted.

That legal battle is now over. And no additional information will be freed.

Yesterday, a federal district court ruled that the Justice Department does not need to disclose two secret memos providing guidance to federal prosecutors and investigators regarding the use of GPS devices and other location tracking technologies…

The Justice Department drafted the memos to address those open questions, but it claimed in court that it should not have to turn them over because they contain attorney work-product and sensitive law enforcement information. The district court disagreed in part, holding that government guidelines for the use of GPS tracking do not qualify as sensitive law enforcement information, because “Law enforcement’s use of GPS tracking is well known by the public.” But it concluded that the government may nevertheless keep the guidelines secret, on the ground that the results of DOJ’s reasoning “will be borne out in the courts.”

The documents apparently contain the DOJ's arguments for warrantless GPS tracking, but the American public won't be allowed to find out anything about the government's justification. Instead, the court has decided to take a hands-off approach and "allow" defendants to "discover" these arguments as they're presented in court. Or not, if the government decides its arguments are too super-sensitive to be released and pushes to present these justifications under seal.

As the ACLU notes, it's only because the FBI's general counsel spoke of these two documents during a panel discussion at the University of San Francisco that anyone even knows the secret memos exist and what they're comprised of. Until these arguments are tested in court, the government is free to determine how much privacy Americans are entitled to in regards to GPS location tracking. Fortunately, there are a few legislators exploring other options.

Senator Ron Wyden (D-OR) and Representative Jason Chaffetz (R-UT) have asked Attorney General Eric Holder to release the documents, reminding the attorney general that “there is no room in American democracy for secret interpretation of public law…" And if you want to skip right over interpretations of the law and get behind a strong Congressional fix, you can support legislation mandating a warrant for all location tracking here.

On a related note, the FBI has filed a motion for summary judgement in its legal battle over NGI (Next Generation Identification) documents requested by an EFF FOIA request. The agency is trying to keep more privacy-related information out of the public's hands, including more details on its facial recognition program and biometric database. The arguments deployed are largely familiar (release of more info would allow criminals/terrorists to circumvent the new technology), but the end result (if the motion is granted) will be the same -- more secrecy for the government and less privacy for millions of Americans.

Filed Under: doj, fbi, foia, gps, secrecy, tracking, transparency
Companies: aclu

EU Re-Think Following Discovery Of Major Flaw In CETA Shows The Benefits Of Transparency

from the enough-eyeballs dept

The Canada-European Union trade agreement (CETA) finds itself in a strange situation. Although Canada and the EU announced that "a political agreement" on the key elements had been reached, there has still been no formal release of the text. Fortunately, we have had several leaks of CETA documents, handily gathered on a new site devoted to them (and to those of the TAFTA/TTIP talks). One of the most recent leaks is of the chapter dealing with corporate sovereignty. It's dated February 14, and shows a large number of alternative versions, which indicates that despite the "political agreement", CETA is far from done.

The availability of this very recent text has enabled experts in the field to examine the proposals in detail for the first time. For example, Nathalie Bernasconi-Osterwalder and Howard Mann from the International Institute for Sustainable Development have put together a fascinating analysis of the investor-state dispute settlement (ISDS) chapter, and of an earlier investment chapter leak from November 2013 (pdf). They've compared them with a document released by the European Commission in December last year, which gave some explanation of the claimed improvements to corporate sovereignty provisions (pdf). The availability of the draft texts allowed Bernasconi-Osterwalder and Mann to check the claims against the reality. Here's their summary:

In the end, and whatever the reason for the disconnect, we conclude that the actual draft legal texts in the public domain show that the European Commission's assertions are in most respects incorrect when compared to the draft legal text. The technical legal analysis is set out on each specific point below. In effect, the analysis indicates that the standards by which the European Commission itself seeks to demonstrate the success of the drafting actually show that the drafting has failed to meet its stated objectives, in fact, sometimes with the exact opposite result.

It's a really thorough analysis, and well-worth reading. But here I want to pull out just one aspect of ISDS, hitherto rather neglected. It concerns what is known as "Most Favored Nation" status:

The European Commission statement simply does not refer to what is known as the most-favoured nation (MFN) treatment clause. Yet, this clause alone is sufficient to undermine all of the objectives the European Commission states it seeks in the drafting. The reason why is explained here.

Article X.8 of the November 2013 draft [of CETA's investment chapter] contains the MFN provision. In essence, it requires, for present analytical purposes, a European state to treat a foreign investor from Canada no less favourably than it treats an investor from any third state. The problem arises from the legal reality that such treatment has been defined in investment arbitrations as including the rights of other investors under investment treaties with the host state. So, if an EU member state that has a Canadian investor also has a treaty with an African, Latin American or any other state, the investor from Canada can import the provisions of that treaty if they are more favourable than the provisions of the CETA.

The impact of this is straightforward. The European Commission statement [published in December] notes the need to "bring very significant clarifications" in order to give arbitrators "strict and detailed guidance when these provisions are invoked by an investor." Now, we have already seen from the preceding analysis that this objective has not been met in the November 2013 draft text. But let us suppose, for the sake of understanding the current issue, that it had been met. The MFN provision would in any event undo this.

That's because Canadian investors could simply invoke the MFN provision, and demand to be allowed to use earlier rights that ignore the claimed improvements to ISDS. And yet the European Commission was completely unaware of this fact until recently, as reported by the Council of Candians in a blog post:

According to Rupert Schlegelmilch, director of services, investment and procurement at DG Trade [in the European Commission], speaking on behalf of the Commission at a public debate yesterday on investor-state dispute settlement (ISDS) and the TTIP, the EU is rethinking a "Most Favoured Nation" (MFN) article in the CETA investment chapter that new analysis suggests undermines much of the more careful language in the treaty relating to a government's ability to regulate. As written, the MFN article would let Canadian and EU investors ignore the definitions of "fair and equitable treatment” or "indirect expropriation" in CETA and take other more investor-friendly language from past agreements signed by either party.

It's not clear whether the European Commission woke up to this huge loophole as a result of the International Institute for Sustainable Development analysis, although this seems likely given the timing. But the key point is that the incident raises the larger question:

"What other mistakes have the Commission and Canadian government made in CETA that compromise the ability of governments to make environmental, public health and consumer protection policies without worrying they will be sued in private arbitration, behind closed doors?" asks Stuart Trew, trade campaigner with the Council of Canadians

We don't know, because we don't have a full copy of the latest CETA draft. If we did, then independent experts could go through it and warn of other flawed passages, thus avoiding serious problems in years to come when it is too late to change anything.

This, then, is another key reason why negotiating texts must be made available as they are drafted, not after they have been signed: Linus' Law, that "given enough eyeballs, all bugs are shallow," applies to international agreements as well as to software code. But the big difference is that for programming, it's a question of how well code runs; with things like CETA, TTIP and TPP, what's at stake is the potentially huge economic and social damage that can be caused by loopholes and carelessly-worded clauses in these far-reaching international agreements.

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Filed Under: canada, ceta, corporate sovereignty, eu, isds, tafta, trade agreements, transparency, ttip

Copyright Alliance Attacks ChillingEffects.org As 'Repugnant,' Wants DMCA System With No Public Accountability

from the stop-publishing-legals-forms-and-sworn-statements! dept

Sandra Aistars of the Copyright Alliance issued a statement during the recent DMCA-related hearing in front of the House Judiciary Committee. As was noted earlier, a bunch of effort was made to turn the "notice and takedown" system into a "notice and stay down" system, and weirdly, the word "free" was thrown about as if it was synonymous with "infringement."

Her statement details the shortcomings of the DMCA system from the expected position, citing the personal travails of creators like Kathy Wolfe, who for some reason has chosen to spend half her profits battling infringement. In general, it painted a bleak picture for future creativity, claiming that unless infringement is massively curbed, creators will stop creating. (There seems to be no place in this argument about the lowered barriers to entry, and the swell of creation that has enabled.)

But where her statement really goes off the rails (even for the Copyright Alliance) is with the attack on the popular copyright notice clearinghouse, Chilling Effects.

The activities of chillingeffects.org are repugnant to the purposes of Section 512. Data collected by high-volume recipients of DMCA notices such as Google, and senders of DMCA notices such as trade associations representing the film and music industries demonstrate that the overwhelming majority of DMCA notices sent are legitimate, yet the site unfairly maligns artists and creators using the legal process created by Section 512 as proponents of censorship. Moreover, by publishing the personal contact information of the creators sending notices (a practice which Chilling Effects only recently discontinued), it subjects creators to harassment and personal attacks for seeking to exercise their legal rights. Finally, because the site does not redact information about the infringing URLs identified in the notices, it has effectively become the largest repository of URLs hosting infringing content on the internet.

How publishing an unaltered takedown notice "maligns" the sender isn't explained. All Aistars says about it is that it's "unfair" because the site name links takedown notices with "censorship." But she glosses over the DMCA's status as the go-to tool for censorious entities -- something's that cheaper and easier than hiring a lawyer to draft a C&D.

She also glosses over the fact that the site is purely voluntary and far from comprehensive. In trying to paint the entire DMCA process as deeply flawed (which it is, but not in the ways she claims…), Aistars cordons off the "Google" side of the internet and attempts to portray it as harmful to creators… by doing exactly what they've asked it to do.

Her argument (if it can even be called that) makes as much sense as those griping about the fact that YouTube notes the party issuing the takedown when it grants requests to remove infringing videos. According to those advancing the "it's not fair" argument, this information is irrelevant and only serves to make rightsholders "look bad." Well, if everything about the statement posted on the deleted videos is true, why is there so much complaining? You don't like the way the facts were delivered?

As for the claims of being harassed for issuing takedowns, those who issue bogus takedowns deserve whatever they get. Legitimate takedowns are generally free from abuse. And if legitimate takedowns are resulting in "harassment" and "criticism," those siding with Aistars need to ask themselves why they care about the opinions of infringers.

Redacting the links makes no sense either. Infringers who use Chilling Effects as a piracy "address book" are probably so far down the scale as to be completely nonexistent. Not only is it a highly ineffective way to infringe, but, as noted above, Chilling Effects is purely voluntary and far from comprehensive.

It seems Aistars (and others) want a powerful anti-infringement tool but none of the responsibility that comes with it. Takedowns should just be honored (and content should "stay down) and filed away in the back of a cabinet somewhere. The public apparently isn't a stakeholder in this particular discussion (as is usually the case in IP-related debates). The Copyright Alliance is stumping for opacity, something that would be warmly received by censorious entities and shoddy copyright fighters whose mass takedowns have taken down tons of legitimate content over the years.

Filed Under: accountability, chilling effects, copyright, dmca, notice and takedown, takedowns, transparency
Companies: chillingeffects.org, copyright alliance

The 'Most Transparent Administration In History' Sets New Record In Denying Freedom Of Information Requests

from the no-accountability dept

On the day of his inauguration in 2009, President Barack Obama announced that his administration would be "the most open and transparent in history." It did not take long for that promise to be tossed aside, and it has been clear for quite a while that this administration is perhaps the most secretive in history. A new analysis by the AP of how the administration responds to FOIA requests confirms that it is becoming even more secretive each year:

The Obama administration more often than ever censored government files or outright denied access to them last year under the U.S. Freedom of Information Act, according to a new analysis of federal data by The Associated Press.

Basically, the administration is doing everything possible to keep information secret. Despite President Obama's memo to the federal government upon taking office on the importance of openness in responding to FOIA requests, the government has done exactly the opposite. His memo, you may recall, stated:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.

Compare that to the reality:

In a year of intense public interest over the National Security Agency's surveillance programs, the government cited national security to withhold information a record 8,496 times — a 57 percent increase over a year earlier and more than double Obama's first year, when it cited that reason 3,658 times. The Defense Department, including the NSA, and the CIA accounted for nearly all those. The Agriculture Department's Farm Service Agency cited national security six times, the Environmental Protection Agency did twice and the National Park Service once.

And five years after Obama directed agencies to less frequently invoke a "deliberative process" exception to withhold materials describing decision-making behind the scenes, the government did it anyway, a record 81,752 times.

Yes. It appears that "the most transparent administration in history" has never been all that transparent, and it's only getting worse.

Filed Under: foia, most transparent administration in history, national security, obama administration, secrecy, transparency

Former Top NSA Official Says Tech Firms Should Be More Transparent About Data Collection

from the well,-yes,-but... dept

Chris Inglis, who had been deputy director of the NSA until recently (and one of the key people who was out there responding to questions about Snowden) is now officially in his (long planned) retirement (though, he's expected to pop back up shortly in the private sector). And as a first order of business, he's apparently imparting some of the "wisdom" he learned over the last few months, by telling tech companies they need to be more transparent about the data they collect:

"There's an enormous amount of data held in the private sector," Mr. Inglis said, in his first published interview since leaving government. "There might be some concerns not just on the part of the American public, but the international public."

[....] "These companies at least have a public relations issue, if not a moral obligation, to really make sure you understand that this is to your benefit," Mr. Inglis said. "As an individual, myself, I continue to be surprised by the kinds of insights companies have about me."

Now, first off, he's right. Companies collecting tons of data on their users should absolutely be a hell of a lot more transparent about what they're collecting (and should give more controls allowing people to opt-out of certain collections). However, it seems quite rich to hear that coming from someone at the NSA, perhaps the least transparent organization ever -- and one that worked hard to make sure that the tech industry was completely barred from being transparent about what sorts of data the NSA gets from them.

To try to spin that as an issue for the tech companies is just silly. As plenty of people have pointed out over and over again, your use of a tech company's services is voluntary. You can avoid it if you don't like it. And, yes, while more information and user controls would be helpful, in the few instances where there have been data leaks, or when it has become clear what kinds of info companies collect, most people have actually been totally fine with it. That's quite different from the NSA. With a company, people may be trading information for a service which they value -- and they're making the choice that the tradeoffs are worth it. That's not true with the NSA. It's not by choice and there's no tradeoff.

No matter what, the idea that Chris Inglis is suddenly the spokesperson for transparency is simply ridiculous.

Filed Under: chris inglis, data, nsa, transparency

James Clapper's Office Hilariously Cites 'Privacy' Concerns In Blanket Denial To FOIA Request For NSA Reform Submissions

from the that-time-when-the-agency-suddenly-pretended-to-care dept

The NSA has received 28 submissions from contractors in regards to handling the logistics of the Section 215 collection's move to the private sector. As part of the administration's NSA reforms, the phone records database is being taken out of the agency's direct control and access limited to court-approved searches. But, as David Kravets at Wired's Threat Level discovered, the new (forced) transparency of the Office of the Director of National Intelligence (ODNI -- better known as James Clapper's staff) remains largely opaque.

Kravets sent a FOIA request to the NSA for the submitted documents, something the wording of the agency's RFI (request for information) indicated would be made available for public viewing.

The RFI informs those responding to "ensure that the submitted material has been approved for public release," which, naturally, led WIRED to believe that the material would be released to the public. Two weeks ago we asked Clapper's office for submissions received under the RFI. We were told to file a Freedom of Information Act request. We did so.

Kravets has now received an answer from the agency. In short, you (Kravets -- and the American public) get nothing.

Jennifer Hudson, the ODNI chief FOIA officer, wrote WIRED saying the agency located 28 documents "responsive to your request," but:

Upon review, ODNI has determined the material should be withheld in its entirety in accordance with FOIA exemptions (b)(4) and (b)(6). Exemption (b)(4) applies to confidential proprietary information involving trade secrets and commercial data obtained from a company which, if released, would result in competitive harm to the company. Exemption (b)(6) applies to information which, if released, would constitute a clearly unwarranted invasion of personal privacy of individuals.

How amusing. The ODNI suddenly cares about privacy. Not so much about the privacy of millions of Americans whose metadata the NSA is harvesting continuously, but about the employees of the companies that voluntarily chose to respond to a request for information from the ODNI's office. (And did so knowing that the information might be released publicly.)

The ODNI obviously is still more comfortable issuing blanket denials and reams of redacted pages than it is with being even slightly transparent. Let's not forget that the documents released by the ODNI (mostly in reference to the Sec. 215 collection) weren't done with transparency in mind, no matter how Clapper phrases the preamble attached to every document dump. These documents were pried loose thanks to a lawsuit against the government.

In the ODNI's hands, "privacy" is nothing more than an occasionally useful concept. The ODNI doesn't care about the privacy of Americans because protecting that privacy provides no value to the agency. But when it's most self-serving, the agency will "care" about privacy of some Americans. The only thing "transparent" here is the ODNI's hypocrisy.

Filed Under: foia, nsa, odni, privacy, surveillance, transparency