New York State Starts Walking Back On Transparency; Grants Gun Owners Exemption From Disclosure Of Public Records

from the first,-they-came-for-my-interactive-map... dept

The backlash against the publication of gun owner data by the Lower Hudson Journal News late last month has turned into a backlash against "freedom of information" laws. Putnam County officials started this regressive ball rolling by refusing to comply with the Journal News' request, breaking a state law in the process. No matter, Sen. Greg Ball was there to share the limelight and offer to rewrite the state law to limit gun owner date to prosecutors and law enforcement.

As was noted then, making exceptions to freedom of information requests on the basis of public outcry is a giant step in the wrong direction. Holding back public records or granting disclosure exceptions simply because the information might be used in an unpleasant way just makes it easier to make more exceptions and withhold more information down the road. This is the direction the state of New York is now headed with the passage of its gun control bill, the NY SAFE Act of 2013, an exemption for gun owners that flies in the face of Governor Cuomo's earlier transparency promises.

Last week, New York Governor Andrew Cuomo laid out an ambitious open government agenda in his state of the state address, declaring his commitment to provide "easy, single-stop access to statewide and agency-level data, reports, statistics, compilations and information." This week he carved out his first exemption: gun owners.

The anonymity exemption, which requires gun owners to provide a reason they wish to remain out of the public record, is a response to the controversy that followed the Journal News' publication last month of the names and addresses of over 33 thousand hand gun permit holders in Rockland and Westchester counties, north of New York City.

The problems with this exemption are obvious. If one set of individuals can effectively "opt out," what's to stop others from claiming they too should be exempted?

"It sets a dangerous precedent," says Noel Hidalgo, Code for America's New York Program Manager, "where special interest groups can exempt their communities." If firearm owners can create an exemption from public disclosure, than why couldn't licensed livery car drivers, healthcare workers, sellers of pesticide or lawyers?

For that matter, what's to stop those in power from crafting even broader exemptions for favored lobbying groups, colleagues or for any other data they wish to keep hidden from the public? It's not so much that this exemption is a slippery slope -- that slope has long since been descended -- it's that placing arbitrary limitations on requested data, especially in response to an isolated incident, compounds an existent problem: the ongoing lack of transparency in many government agencies.

Even worse, there were better ways to handle the gun owner data that would not have required altering existing laws by adding an exploitable exemption:

"Some of the concern with the Journal News dataset is the fact that they put an individual's name and address with a gun," says Hidalgo. According to him, listing gun permit holders by name and zip code or census tract could better satisfy the competing demands the personal privacy and public disclosure, than simply exempting data from public record.

The law gives gun owners a chance to opt out using one of two reasons: belief that publication of their data would put their life at risk (police officers, former witnesses/jurors in criminal cases, etc.) or the wish to avoid "unwarranted harassment." Bob Freeman, the executive director of New York's Committee on Open Government, says this wording is way too vague.

"We're all involved in 'unwarranted harassment' every day of our lives," he continues, referring to his full e-mail box in the morning, and unsolicited calls from journalists as potential examples.

Meanwhile, Sen. Greg Ball's legislation is still in motion, looking to exempt pistol purchasers from FOI disclosure. Those registering for a pistol permit will be automatically opted-in under his proposal. Ball lays part of the blame on modern technology, suggesting that if the information were only a bit harder to attach to a Google map, he'd leave the law unchanged.

When initially established the Freedom of Information Law couldn't possibly be written to factor in modern technology including social media tools (Twitter, Facebook, etc) or advanced mapping technologies like Google Maps. These social media advancements emerged as commonplace tools to access personal information after many public information laws were passed. The advent of the Internet must be considered when working to ensure every citizen of New York has both their privacy and safety protected, guaranteed by law.

Like many lawmakers, Ball only wants to update laws to reflect the "advent of the internet" when it aligns with his agenda. We've seen resistance to update laws that operate favorably for those benefitting from the lack of timeliness, including outdated gems like the Computer Fraud and Abuse Act or various copyright laws that proponents want stretched past their expiration date in order to treat file sharing like selling bootleg DVDs out of the trunk of a car. Ball's desired update of the FOI law isn't about reflecting the current reality; it's political opportunism that dovetails nicely into the government's natural tendency towards opacity.

The state of New York has taken several steps in the right direction in terms of transparency. Now it's allowing the prevailing winds to push it a step back.

UPDATE(S):

Some last-minute additions, tacked on to the bottom, as this post has already been "put to bed," as they say in places where ink still hits paper.

The Lower Hudson Journal News has decided to take down its "gun map," claiming that it wished to follow the "spirit" of the newly-passed NYSAFE gun law exemptions. Here's the paper's full statement:

With the passage this week of the NYSAFE gun law, which allows permit holders to request their names and addresses be removed from the public record, we decided to remove the gun permit data from lohud.com at 5 pm today.

While the new law does not require us to remove the data, we believe that doing so complies with its spirit. For the past four weeks, there has been vigorous debate over our publication of the permit data, which has been viewed nearly 1.2 million times by readers. One of our core missions as a newspaper is to empower our readers with as much information as possible on the critical issues they face, and guns have certainly become a top issue since the massacre in nearby Newtown, Conn. Sharing as much public information as possible provides our readers with the ability to contribute to the discussion, in any way they wish, on how to make their communities safer.

We remain committed to our mission of providing the critical public service of championing free speech and open records.

And, from the if-you-don't-have-time-to-do-it-right,-how-will-you-find-time-to-do-it-twice department, the rushed NYSAFE bill failed to include exemptions for law enforcement.

A New York lawmaker says that the state’s recently passed gun control law stunningly fails to include any exemptions for law enforcement officers, and technically prohibits police from ever bringing guns on school grounds or possessing extended ammo magazines.

Of course, no one really has to do it twice. A Cuomo spokesman has already verbally exempted police officers from the new law, allowing it to join the many other laws police officers are free to ignore. (Jab!) Presumably, amended language will join the rest of the passed bill early next week. 

Filed Under: gun control, guns, new york, transparency

White House Refuses To Be Transparent About Positions On Transparency

from the not-transparent-about-transparency dept

As we well know, despite promises from the Obama administration that it would be "the most transparent" in history, it has been anything but that over its first four years. The US Trade Rep (USTR) has been particularly bad on this front, especially when it comes to trade agreements that will have a massive impact on the public, such as ACTA and TPP. No matter how many times they were asked by the public, by Congress and by other countries, the USTR kept insisting that it had to keep things secret because... well... just because. There were some excuses made about how they don't "negotiate in public" or about how "this is how it's always been done," but those don't make any sense when you look at the details. It became especially silly in the ACTA negotiations, late in the process, when many of the countries involved indicated that they wished things were more transparent and many pointed their fingers at the US as being the one country that kept things secret. Also, we know that other international agreements are done in a much more transparent fashion.

The folks at KEI filed a Freedom of Information Act request for documents relating to the US's position on transparency regarding a particular ACTA meeting, as well as documents the US had on the positions of other countries. FOIA requests are supposed to be fulfilled within 20 business days from the time they're received. In practice, this time frame is almost never met, though sometimes for good reasons (it takes a while to do some of the searches). However, in this case, it took two and a half years for the White House to finally respond, and when it did, the response was that, while 16 relevant documents were found, it wouldn't release them, because of reasons.

More specifically:

With regard to the second category, we identified sixteen (16) pages of responsive records. We have determined that all 16 pages of responsive records are exempt from disclosure under the deliberative process prong of section of the FOIA. The deliberative process privilege protects the decision making processes of government agencies by encouraging open and frank discussions on policy matters among subordinates and superiors. These records contain predecisional discussions regarding negotiating positions and their implications on future negotiations. Moreover, these documents contain policy recommendations and opinions shared between subordinates and superiors.

Think about this for a second. This is a request to be transparent about positions on transparency, and they're being rejected because it may show discussions about transparency. Really. The fact that these discussions "may contain open and frank discussions on policy matters" shouldn't be a huge concern. The ACTA negotiations are done at this point, and it should be easy enough to redact other issues that might impact future policy efforts. It seems ridiculous to suggest that discussions on whether or not the US should be transparent are, themselves, not subject to transparency.

Filed Under: acta, tpp, transparency, ustr

There's A Secret Reason Why The Government Has To Keep It Secret How Many Americans It's Spying On Without A Warrant

from the because...-terrorism dept

The folks over at the CATO Institute have put together a short five minute video on the rush by the federal government to renew the FISA Amendments Act, with no changes, which effectively has sanctioned warrantless wiretapping on millions of Americans. Even though the plain language of the bill suggests it only should be used on foreigners, it's become clear that thanks to weasel language in the bill, and a "secret" interpretation by a secret court, the definition of "targeting" foreigners has been interpreted to mean any communication that might possibly somehow shed light on some sort of illegal activity that might possibly maybe involve foreigners sometimes in some manner. As such, it seems likely that the NSA, in particular, has used this bill and its secret interpretation to sweep up huge databases of information about Americans, even as most people (including many in Congress) believe the bill only is used to spy on foreigners. The video is especially worth watching for the brief segment involving Senator Dianne Feinstein, who was the main supporter of extending these rules, responding to Senator Wyden's amendment that sought to have the NSA provide an estimate -- just an estimate -- of how many Americans had their information swept up by the NSA in its dragnet. Feinstein insists that there's a secret reason for why this information needs to be kept secret -- and promises to wave the piece of paper around (if someone hands it to her) that contains the secret reason that she can't tell us.

So, if you're keeping track at home, we've got a bill with plain language that most people incorrectly believes means that it only involves collecting data on foreigners. But thanks to a secret interpretation, it's almost certainly being used to collect tons of data on Americans, which is being kept secret. Furthermore, the NSA claims that it must keep secret whether or not it even has an estimate of how many Americans' have had their data sucked up by this secret program because of, well, a secret reason.

Does that actually make anyone feel safer?

Filed Under: dianne feinstein, fisa, fisa amendments act, secrecy, transparency

Blowback From Publication Of Gun Owner Data Continues -- Threats, Lawsuits And Rejected FOIA Requests

from the men-with-guns-protecting-journalists-from-men-with-guns dept

The battle over the privacy of gun owners continues in New York. Last week, the Lower Hudson Valley Journal News secured the names and addresses of gun owners in two New York counties, publishing the information as an interactive map and framing the "story" as a public service -- information people would "want" to have following the Connecticut school shooting.

Needless to say, this drew the ire of gun owners, along with others who felt the Journal News had crossed a line by publishing this personal information. In response, the names and addresses of various Journal News personnel were posted and the paper found itself dealing with angry phone calls and comments, along with anonymous threats and mail coated with a mysterious (but apparently, non-toxic) white powder.

Somewhat ironically, the Journal News has now hired armed security guards to protect its business and employees.

The Journal News of West Nyack, N.Y., has hired armed security guards to defend its offices after receiving a torrent of phone calls and emails responding to the paper's publication of the names and addresses of area residents with pistol permits.

RGA Investigations, a private security company, "is doing private security at on location at the Journal News as a result of the negative response to the article," according to a police report first obtained by the Rockland County Times (Nanuet, N.Y.) and shared with POLITICO. The guards "are armed and will be on site during business hours through at least January 2, 2013."

Now, the paper is finding itself stymied by public officials in its search for more gun owner data. Putnam County officials have announced that they will refuse the Journal News' FOIA request, which it had begun compiling before the backlash began. After receiving an "onslaught" of calls demanding that the county not release the data, Putnam County Executive, MaryEllen Odell, has decided to withhold the requested information, earning an ally in State Senator Greg Ball.

"I'm proud to stand with Putnam County and proud that Putnam won't be releasing its pistol permit records," [Ball] said in a statement. "The asinine editors at the Journal News have gone out of their way to place a virtual scarlet letter on law abiding firearm owners throughout the region and I thank God that Putnam County has a clerk with the guts to stand up and draw the line here."

[Putnam County Clerk Dennis] Sant said he was happy to protect law-abiding gun owners in his county.

"There is the rule of law, and there is right and wrong, and The Journal News is clearly wrong," he said in a statement. "I could not live with myself if one Putnam pistol permit holder was put in harm's way, for the sole purpose of selling newspapers."

Ball has also stated that he will introduce legislation to restrict gun permit information to prosecutors and police. A public press conference is scheduled to announce this refusal, but there's a good chance this move won't stand up in court, should the battle head in that direction.

Putnam County officials, who say they will refuse a newspaper's request to release the names and addresses of residents with pistol permits, would break state law by withholding the data, a state official said.

The opinion, of state Committee on Open Government Executive Director Robert Freeman, came after an announcement Tuesday by state Sen. Greg Ball and two Putnam officials that they would refuse to release the data requested by The Journal News of White Plains, which sought the records under the state Freedom of Information Law

Freeman said, the law is clear. "The name and address of any gun licensee are public," he said.

The Journal News will likely appeal the denial, which would then be heard by the Putnam County government. A second denial would route it to a judge for a formal decision. In the meantime, the Journal News is sticking to its proverbial guns, claiming the info dump was in the public interest.

In other bad news for the paper, it has just been named in a defamation lawsuit filed by a local business, which claims that the Journal News piece which named it as a gun owner caused "customers and clients of First Impression LLC to cease doing business, causing damages in amount to be determined."

The filing runs only two pages but is loaded with adjectives.

The two-page, bare-bones Summons With Notice accuses the newspaper of "falsely, maliciously, recklessly, slanderously, libelously and irresponsibly publicly stating in the interactive website www.lohud.com that plaintiff First Impression LLC is a licensed handgun owner."

So, it looks as if the future holds quite a bit of court time for the Journal News. It also looks like this fight over gun owner data isn't going to end anytime soon.

The thorny question still remains: did the Journal News have the right to publish gun ownership? Certainly, the First Amendment grants it the freedom and the fact that the information was gained through legal channels seems to make that "right" argument unassailable. The Journal News was well within its rights to post the information, no matter how irresponsible its use of the information was.

Unfortunately, the many people who opposed the Journal News' actions (which includes people on both sides of the gun control debate) have been vocal enough that government agencies are beginning to arbitrarily withhold requested information, stating a sudden (and unlikely) concern for protecting the privacy of gun owners -- whose permits are a matter of public record. Allowing government agencies to reject FOIA requests because they don't like how the information is being used or are worried about public response is a big step in a very wrong direction. Even worse, grandstanders like Sen. Ball are looking to further restrict the dissemination of information by limiting access to gun ownership data to prosecutors and police. Even if this particular restriction seems logical, the simple fact is once this protection is granted for certain data, the system is opened to abuse by other entities and agencies looking to keep as much info as possible under wraps. This will result in more restrictions and limitations and less actual freedom of information.

Filed Under: data, guns, journal register, journalism, ownership, public information, transparency

More Post-Newtown Fallout: Gun Owners Vs. Journalists In New York

from the you-showed-them-mine-so-I'll-show-them-yours dept

The Connecticut school shooting has pushed the discussion of gun control back into the media spotlight, along with providing a convenient soapbox for lawmakers, lobbying groups and pundits willing to politicize tragedies to push their agendas through. There's been a lot of vitriol on both sides of the issue, with discussion of Second Amendment rights often leading those involved to forget all about the opposing side's First Amendment rights.

One aspect that has changed is the sheer amount of personal information available to those involved in this debate, which results in the sort of exchange that played out recently in New York. The Journal News, covering the Lower Hudson Valley, decided to post a Google map that showed the names and addresses of everyone with handgun permits in Westchester and Rockland counties. This information was gathered via a Freedom of Information requests.

Published under the fear-inducing title "The Gun Owner Next Door: What you don't know about the weapons in your neighborhood," the interactive map drew plenty of heat from gun owners who felt their personal information shouldn't have been made public. The map had the slight potential to affect criminal activity, either by steering would-be burglars to safer, weapon-free households, or to give these same hypothetical opportunists a list of addresses from which to poach guns while their owners were at work.

Also troublesome was the inference made ever so lightly by the article's title: that weapons were dangerous, and by extension, so were their owners. The timing of the article was also problematic -- and intentional. The FOIA requests went out after the Newtown shooting, skewing the purpose of the info dump even further.

A red-dotted map indicating clusters of gun owners easily, under the circumstances, continued the connect-the-dots inference: with so many weapons around, surely the non-gun owning citizens of the Lower Hudson Valley had something to fear. In totality, it was a badly timed, name-and-shame piece that painted gun owners as ticking time bombs, opening with the story of a mentally disturbed man who had put together a large cache of unregistered weapons, "without any neighbors knowing" -- something no one would have had any interest in if he hadn't used one of his guns to shoot a neighbor in the head. Quotes on both sides of the issue are scattered throughout, but the implication was clear: guns are dangerous, whether in the hands of their rightful owners, or borrowed by murderers like Adam Lanza.

The question arises as to whether the Journal News should have published this information. Clearly, the gun owners knew (or should have known) their information was a matter of public record. But should it have been used in this fashion -- or at all? Their personal information was always a FOIA request away, but does that grant a press entity the right to tie this info into an agenda-loaded piece?

The answer, of course, is that the Journal News had the right to use it in this fashion, thanks to the information being of public record and the First Amendment. The paper has received tons of criticism for this piece, and rightfully so, but that's how free speech works. The response, an info dump on anyone involved with the Journal News, spearheaded by former lawyer Christopher Fountain, is also how free speech works.

Again, publicly available information was used to compile addresses, phone numbers, email addresses, Twitter/Facebook accounts, of Journal News employees, as well as various Gannett executives. Techcrunch refers to it as a "transparency arms race," granting the argument a bit of nobility it certainly hasn't earned. It's simply ugly eye-for-an-eye tactics that result in nothing more than each side of the issue becoming more firmly entrenched.

Both info dumps will have their consequences, in some form of harassment, most likely. Fountain's info dump more clearly paints the Journal News staff as villains, with the original piece leaving that on a more implicit level. Neither group involved has any true expectation of privacy, but both have claimed "victim" status. A followup post at the Journal News mentions that it has received threats along with the normal complaints, but that's something it clearly should have expected when it published a map that singled out gun owners for legal activity. (It should also be noted that the headline writers threw some slant into this post as well. The first headline, appearing at 8:39pm on Dec. 25th read "The Journal News/Lohud.com assailed for publishing map of permit holders." The newer headline, published 10:53pm, reads "Journal News' gun-owner database draws criticism.")

Fountain's response, while troubling in its own way, should also have been expected. Many people still labor under the illusion that their private lives are their own, while leaving so much exposed publicly via social networks like Facebook and LinkedIn, as well as by any number of government services. Failing that, there's always the phone book, which still publishes names and addresses of a majority of US citizens -- a service that is considered default unless the individual makes the effort to opt out.

The protections granted by the First Amendment will continue to generate ugliness that's often hard to defend. In this case, it opens a lot of people up to harassment and possible danger. People may decry "irresponsible" journalism, but if the First Amendment is to remain intact, that's going to remain a constant. The solution is always more speech, which can take many forms, many of them just as ugly as the original bit of controversial speech.

Filed Under: free speech, gun owners, guns, information, journalism, reporters, transparency

US Hypocrisy: Supports Open Dialog On Internet Governance At WCIT; But Full Secrecy At Parallel TPP Negotiations

from the hypocrites dept

Back in October, we pointed out how the US delegation to the ITU WCIT (World Conference on International Telecommunications) was pushing for much more openness and transparency for the notoriously closed and secretive process that could impact internet governance. That was certainly refreshing to see. But it also stood in stark contrast to the same US government's massively secretive and opaque process to the Trans-Pacific Parntership agreement -- which could have just as much, if not more, of an impact on internet governance issues.

With negotiations on both issues happening simultaneously (WCIT in Dubai and TPP negotiations in New Zealand) it seems quite crazy to see the US speaking out vehemently in favor of greater openness and transparency in Dubai, while actively trying to prevent similar transparency in Auckland. Here's the State Department on WCIT:

On the eve of the World Conference on International Telecommunications (WCIT), we believe that it is the right time to reaffirm the U.S. Government's commitment to the multistakeholder model as the appropriate process for addressing Internet policy and governance issues. The multistakeholder model has enabled the Internet to flourish. It has promoted freedom of expression, both online and off. It has ensured the Internet is a robust, open platform for innovation, investment, economic growth and the creation of wealth throughout the world, including in developing countries.

[....] The Internet's decentralized, multistakeholder processes enable us all to benefit from the engagement of all interested parties. By encouraging the participation of industry, civil society, technical and academic experts, and governments from around the globe, multistakeholder processes result in broader and more creative problem solving. This is essential when dealing with the Internet, which thrives through the cooperation of many different parties.

The global community has many serious topics to discuss with respect to the Internet. Collectively, we need to ensure that these matters are taken up in suitable multistakeholder venues so that these discussions are well informed by the voices of all interested parties.

Our commitment to the multistakeholder model is based on the fact that transparency, inclusion and participation are the 21st century standards governing discussions related to modern communications.

Yet, over in New Zealand, US officials, as well as negotiatiors from others countries, are taking the opposite view. They're doubling down on secrecy, not transparency. They are not using a "multistakeholder" model at all, but rather locking out civil society and public interest groups. They've ignored or limited the ability of the innovation industry to have any say in the proceedings at all, and (most ridiculously) they're enforcing a secrecy policy many times worse than what we see at the ITU with WCIT. Many of the documents from WCIT have leaked out, while precautions mainly driven by the US government have, to date, limited the leaks from TPP negotiations.

It's really quite incredible that the same government can make those claims about openness, transparency and the importance of a multistakeholder process on the one hand, while going in the opposite direction on basically the same exact issue at the very same time for an event held elsewhere. The whole thing stinks of hypocrisy, which could easily be solved by opening up the TPP process, revealing the negotiating documents for public comment, and allowing the public into the process. After all, in the words of the US government:

We have and will continue to advocate for an Internet that is not dominated by any one player or group of players, and one that is free from bureaucratic layers that cannot keep up with the pace of change. We will work with everyone to ensure that we have a global Internet that allows all voices to be heard.

If only the US government would listen to that important message.

Filed Under: hypocrisy, internet governance, itu, openness, tpp, transparency, ustr, wcit

Dear ITU: A Complex Process Where Delegates Who Fly To Dubai Can 'Lobby' Is Not 'Transparency'

from the words-mean-things dept

The EU Parliament recently joined the US government in speaking out against the ITU's upcoming WCIT event, which we've been discussing. This is where the ITU -- an ancient organization designed to deal with telegraphs, and whose relevance today has been widely questioned -- is seeking to take over certain aspects of internet governance, well outside its mandate. Certain countries -- Russia and China in particular -- and certain large telcos (including many EU ones) are looking at this as a way to advance very specific interests, either for increased control and censorship over the internet, or in forcing successful internet companies to fork over money to telcos who have failed to innovate. Thankfully, the EU Parliament has now spoken up about its concerns, noting a number of key points (these are just the first half, but they give you an idea):

1. Calls on the Council and the Commission to ensure that any changes to the International Telecommunication Regulations are compatible with the EU acquis and further the Union’s objective of, and interest in, advancing the internet as a truly public place, where human rights and fundamental freedoms, particularly freedom of expression and assembly, are respected and the observance of free market principles, net neutrality and entrepreneurship are ensured;

2. Regrets the lack of transparency and inclusiveness surrounding the negotiations for WCIT-12, given that the outcomes of this meeting could substantially affect the public interest;

3. Believes that the ITU, or any other single, centralised international institution, is not the appropriate body to assert regulatory authority over either internet governance or internet traffic flows;

4. Stresses that some of the ITR reform proposals would negatively impact the internet, its architecture, operations, content and security, business relations and governance, as well as the free flow of information online;

5. Believes that, as a consequence of some of the proposals presented, the ITU itself could become the ruling power over aspects of the internet, which could end the present bottom-up, multi-stakeholder model; expresses concern that, if adopted, these proposals may seriously affect the development of, and access to, online services for end users, as well as the digital economy as a whole; believes that internet governance and related regulatory issues should continue to be defined at a comprehensive and multi-stakeholder level;

6. Is concerned that the ITU reform proposals include the establishment of new profit mechanisms that could seriously threaten the open and competitive nature of the internet, driving up prices, hampering innovation and limiting access; recalls that the internet should remain free and open;

The ITU has taken to its blog to hit back, claiming that it is deeply disappointed in the resolution. No surprise there. It tries to hit back on some of the points, but fails wildly. Take, for example, its response to the transparency issue:

However, it is important to point out that WCIT is inclusive of 193 national delegations which are participating in WCIT-12. Private sector companies and civil society organizations have also registered to attend WCIT-12 in large numbers.

Everyone attending WCIT-12 is free to lobby for their specific positions.

Added to this, in the run-up to the conference, the ITU Secretariat created a platform to allow any individual, civil society player or company to make its views known.

The very thorough and inclusive preparatory process leading up to the WCIT-12 has been completely transparent. Every European parliamentarian could have obtained all the documents from their own government, or from the European Commission.

At ITU, transparency is achieved at the national level, through national consultations in national languages. Surely this process is far more inclusive than just posting an English language text on a web page?

Note the key false equivalency here: that transparency means that you can have your voice heard (if, that is, you're willing to sign up to fly to Dubai and take part as a delegate). First of all, being heard is not transparency. Transparency is about sharing information in the other direction. It's about making the discussions and details public so everyone knows what's going on. Hearing what people are saying is listening and it's important -- but it's not transparency.

Second, the fact that parliamentarians could obtain the documents is not transparency either. It does not involve the public.

It's this kind of misleading rhetoric that makes people so concerned about the ITU. The fact that it pretends transparency is something other than it is seems like a real problem.

Filed Under: itu, transparency

It's Scary How Rapidly Government Requests For Info And Censorship Are Increasing

from the wake-up-people dept

Google's latest transparency report is out and the notable bit of info is that governments continue to increase how often they're seeking info about users. The increase there is a steady growth which is immensely worrisome. There's also an equally troubling increase in the attempts to censor content via Google, though in that case, it was relatively flat until the first half of this year when it shot way, way up.

Digging deeper into the data, it's not surprising to see the US top the list (by a wide margin) of governments seeking info from Google. Frankly nothing on that list is all that surprising. Looking at their annotations on takedown requests, it once again seems to show the incredibly thin-skinned nature of those in power, who then seek to abuse that power to censor information that makes them look bad. Just a couple of examples:

We received a request from the office of a local mayor to remove five blogs for criticizing the mayor. We did not remove content in response to this request.

We received a request from legal representatives of a member of the executive branch to remove 10 YouTube videos for alleged defamation. We did not remove content in response to this request.

There are a lot more like that, mostly from countries that have less respect for free speech than the US. However, some of the requests in the US are equally troubling:

We received five requests and one court order to remove seven YouTube videos for criticizing local and state government agencies, law enforcement or public officials. We did not remove content in response to these requests.

This one is concerning. What court ordered a takedown of a YouTube video criticizing local government officials? That seems like it should be public info.

Google also admits to taking down info pursuant to a court order concerning defamatory content, though at least some courts have argued that, thanks to Section 230, sites do not have to remove content, even if it's judged to be defamatory. Still, it's reasonable for Google to decide, as a matter of policy, that if a court finds content defamatory, and a proper court order is issued, that it will remove that content.

Interesting information, if still troubling, given the general trends.

Filed Under: censorship, information, surveillance, transparency
Companies: google

Bradley Manning's Prosecutor Scolded For Refusal To Open Access To Court-Martial Proceedings

from the government-hates-us-for-our-freedom dept

As was noted here back in September, several news organizations have begun a coordinated push to have the Bradley Manning court-martial "opened up" to allow the general public to access motions, briefs and rulings. The military refused (of course), inviting the press to entertain itself with near-useless FOIA requests, a clunky form of "openness" prone to inexplicable (and endless) delays when not being ignored completely.

Fortunately, the military appeals court has taken this plea for openness more seriously than the government itself, which seems to treat it as an unwelcome nuisance at best. On Wednesday, the Court of Appeals of the Armed Forces (CAAF) began looking into allegations that the government has violated First and Sixth Amendment rights in regards to free press and public trials by making all filings and transcripts inaccessible.

The CAAF had little patience with the government's insistent obfuscation but seemed unsure as to whether it could actually force a change:

Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.

Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.

Other judges had the question in mind as well.

Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.

"Widely shared" is correct. In all, 31 news outlets signed off on an amicus brief filed by the Reporters Committee for Freedom of the Press, and several other entities have petitioned for access. Some discussion ensued as to whether or not a sort of PACER access could be implemented, and Kadilal proposed several possibilities, including paid stenographers, online audio streams of the proceedings, or having redacted documents posted to the court's website.

Chief Judge James Baker offered somewhat of a compromise in order to move the proceedings along:

Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.

At this point, the panel turned on government lawyer Capt. Chad Fisher, pointedly asking why the executive branch felt it necessary to force this issue to be discussed rather than simply open the trial up for public access:

"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.

In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"

A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.

The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.

While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.

Basically, Fisher's answer boils down to: if the general public wants this information, it's going to have to work for whatever scraps the executive branch deems it worthy of. Nominally a tool of transparency, the FOIA has been twisted into a barely functioning layer of bureaucracy that most administrative agencies seem to treat as completely optional. Whatever doesn't get delayed indefinitely or redacted into uselessness is simply denied under any number of executive privileges or for bogus "national security" reasons. One of the CAAF judges pointed out this irony, stating that the FOIA statute has done more to close off access to the Manning case, than to open it further.

Fisher's next statement displayed the sort of hubris inherent in agencies that routinely disregard the rights of others:

Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.

Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.

This answers Judge Ryan's question from earlier: why make a Constitutional case out of this? The answer: because certain agencies will never do ANYTHING that results in transparency or openness until forced to, and even then, their compliance will be marked by endless delays, appeals and attrition.

Judge Baker pressed the point by pointing out that the government's representation was willing to avail itself of all available rights and privileges, but was unwilling to extend those courtesies to others.

Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.

"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.

While it's refreshing to see a panel of judges as sick of governmental hubris and obfuscation as much of the public is, this matter is far from settled. The government will likely continue to hold out as long as possible before granting access to Manning's court-martial.

In order to expedite the proceedings, Kadilal has suggested that the court find that "court-martials have a First Amendment obligation to public access," passing along the implementation logistics to the lower court. However, if the CAAF finds the decision is out of its jurisdiction, Kadilal said he plans to seek "emergency relief in a federal court." Unfortunately, forcing the issue in this fashion would require Manning's defense to file a stay of trial, resulting in further delays for the defendant who has already spent over 900 days in pre-trial incarceration.

While demands for openness currently remain unmet, it's good to see another set of judges irritated with the standard M.O. of many government agencies: closed, secretive and unwilling to change unless forced.

Filed Under: bradley manning, court martial, foia, press freedom, secrecy, transparency