I’m still digesting the additional documents the U.S. director of national intelligence released last night. The New York Times’ coverage of the latest documents released notes that they include a 2006 “ruling in which the Foreign Intelligence Surveillance Court first approved a program to systematically track Americans’ emails during the Bush administration.”
The opinion, signed by Judge Colleen Kollar-Kotelly, permitted the NSA to gather email addresses and other forms of Internet communication in bulk — but not the content of those communications. Law professor Orin Kerr has “major problems” with the FISC opinion:
“By imagining that the statute provides more protection than it does, and by then construing the ambiguity in the statute in the government’s favor, the FISC’s opinion ends up approving a program that Congress did not contemplate using privacy protections Congress did not contemplate either,” he wrote, at his blog. “The resulting opinion endorses a program that appears to be pretty far from the text of the statute.”
Taken in sum, the Guardian holds that these FISA court opinions show that the NSA demonstrated disregard for the privacy protections that are constitutionally afforded to American citizens under the Fourth Amendment.
Transparency, at last?
On the one hand, the intelligence community’s Tumblr blog and Twitter account have been an effective means of distributing and publicizing the document releases it is publishing on odni.gov, its website. That’s a measure of transparency, although the redacted, scanned documents are not “opening the kimono” all the way.
On the other hand, if you only read the ODNI’s press release and posts at that tumblr (which are quite similar,) you wouldn’t know that the documents released are not only pursuant to President Barack Obama directive to DNI Clapper to declassify information relevant to NSA bulk data collection.
As Cyrus Farivar reported for Ars Technica, “the documents, which include annual reports from the Attorney General to Congress, memos, presentations, and training documents, were released in relation to an Electronic Frontier Foundation and American Civil Liberties Union [Freedom of Information Act] lawsuit.”
The overarching context for the release of nearly 2000 documents are the leaks of former NSA contractor Edward Snowden, whose disclosures to The Guardian and Washington Post prompted President Barack Obama’s directive to ODNI.<
So, this is what "open government" looks like in 2013: networked, nuanced and opaque. Official documents are released in response to the reports of whistleblowers, and then distributed through the government's official channels online and reported, factchecked and through the 4th and 5th Estates.
This dynamic only bound to get more interesting from here on out.