Federal judge rules public officials blocking the public on Twitter violates the First Amendment

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When the president or others with access to his Twitter account block American citizens from following @realDonaldTrump based upon the viewpoints they express, it violates their First Amendment rights.

In a historic decision, a federal judge ruled today that it is unconstitutional for President Donald J. Trump to block his critics on Twitter, as portions of @realDonaldTrump account constitute a public forum, which means blocking them based on their political speech violates the First Amendment:

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.

This is a historic win for the First Amendment and the public’s right to access official statements and participate in public discourse regarding those statements.

As I highlighted last year, tweets by @realDonaldTrump are official statements from the President, which means that the public has a right to equal access and participation around them, even when their speech is hosted on a private platform. The public interest argument was clear then:

“A president’s statements are not just made for people who voted for him or support his policies or politics.

Unfortunately, Trump is not alone: other local, state and federal politicians are also blocking their constituents on Twitter.

Doing so sends the wrong message to the public about whom they serve. Listening and responding to members of the public that they represent is a minimum expectation for public servants in any democratic state, whether those voices are raised in protest, petition, email, send letters or reply on social media. While there are practical challenges to making sense of millions of emails, tweets, call or letters, blocks are not the solution to filter failure.”

No President should block Americans from reading his official statements, replying or interacting with others here.

No other public servant should block constituents, either, from city councilors and alderman to judges, governors and mayors.

On Twitter, officials and politicians who have blocked constituents now consider policies to Mute accounts if someone is being vile or abusive, with transparency about guidelines and use. Users who abuse one another are already subject to accountability for violations of @Twitter rules, which could be reported by officials or civil society.

As the judge noted, addressing President Trump blocking people is legally tricky.

While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.

President Trump should acknowledge the ruling and follow the law, unblocking everyone. Whether he’ll embrace such a change on his social platform of choice isn’r clear at all — especially given his refusal to follow security protocols for his iPhone, despite the risk of nation states spying on him.

In the wake of this ruling, the president should acknowledge the ruling in a video & tweeted post, work with Twitter to unblock everyone, and apologize for engaging in viewpoint-based discrimination and chilling the speech of his constituents, the American public.

But I doubt Trump will.

So, here’s a different idea. It would be an unprecedented move for an unprecedented presidency, but I hope Jack Dorsey and his board will seriously consider removing the Block feature from all official government accounts verified by Twitter.

If code is law and law is now encoded, one way for Twitter to embrace its DNA as a 21st century platform for free speech and make open, public access to official statements the default, putting pressure on Facebook, Google and others to follow.

Why it’s past time for governments to fix public comments online – and how

The Bot Wars, begun they have. Over the past two years, automated social media accounts and fraudulent regulatory filings have been used by anonymous parties to obscure public opinion, distort public discourse, and corrupt the integrity of rulemaking in the … Continue reading

VA rejects Freedom of Information Act request for missing open government plan

The VA is being neither open nor transparent about its missing open government plans or policies. On March 29, 2018, I made a Freedom of Information Act request to the United States Department of Veterans Affairs (VA) in which I … Continue reading

Open Government Partnership researchers find flaws and growing regression on open government in the USA

researchers from the Open Government Partnership’s Independent Reporting Mechanism (IRM) shared a new end of term report that detailed both progress and regression in meeting the commitments in the third United States National Action Plan for Open Government between October 2015 and May 2017. To be charitable, the researchers found a mixed record on open government during that time period, with poor public engagement, limited government feedback, and lack of civil society setting the agenda or participating in an iterative dialog with government. Continue reading

Rebooting

 …and we’re back! I will be writing at E-PluribusUnum again this spring, along with tweeting @ePluribusUnum. The following post was originally published on my personal blog, offering some insight into the last two years and what lies ahead. My last … Continue reading

Why I’m joining the Sunlight Foundation

I won’t bury the lede on this story: today is my first day at the Sunlight Foundation as a senior analyst. I’m enormously excited to be joining an organization that’s been at the heart of a global movement towards opening governments to the people they serve with technology, from open source to open data.

If you’ve followed my writing and interests over the past decade, you know that I’m passionate about open government in all of its forms. I’ve been humbled to meet thousands of people around the world who are deeply committed to public service and improving how government functions.

This is a natural fit. From improving public access to information to civic engagement to collaboration around code to participation in democratic governance processes, from regulations to legislation, the Sunlight Foundation has been at the cutting edge of making government more open, effective and accountable.

There’s also a personal reason I made this decision: Jake Brewer, a former Sunlighter and White House staffer who we lost far too early last year, frequently urged me to to make the most of my short time on Earth. This is the right place for me to be.

Long-time readers should expect me to continue writing and participating in this role, creating acts of advocacy journalism in the public interest.

I believe that people have a right to know what is being done in their name by their elected governments. Implicit in that view is the notion that representative democracy is the worst form of government, save for all the rest. It’s up to us to protect and improve the states that we have founded and fought to preserve.

As people who have been paying close attention to Sunlight know, it’s an organization in transition. I’m proud to join up with this open government “restartup”, pitching in where ever my talents are helpful. I believe 2016 is going to be a dynamic year at Sunlight, which is why I’ve thrown in my lot with the extraordinary folks on staff.

I hope that you will continue to send your thoughts, feedback, suggestions, tips and ideas my way in the days and months to come.

President Obama’s media critique is missing self-reflection

President Barack Obama​ commented on the state of journalism this week, speaking at the Toner Prize ceremony.

It’s a thoughtful analysis from a voracious, long-time consumer and, it seems, critic of the news that’s worth reading or watching if you’re interested in the role of a free press in a democracy.

As I said a few weeks ago, some may be more to blame than others for the current climate, but all of us are responsible for reversing it.

I say this not because of some vague notion of “political correctness,” which seems to be increasingly an excuse to just say offensive things or lie out loud. I say this not out of nostalgia, because politics in America has always been tough. Anybody who doubts that should take a look at what Adams and Jefferson and some of our other Founders said about each other. I say this because what we’re seeing right now does corrode our democracy and our society. And I’m not one who’s faint of heart. I come from Chicago. Harold Washington once explained that “politics ain’t beanbag.” It’s always been rough and tumble.

But when our elected officials and our political campaign become entirely untethered to reason and facts and analysis, when it doesn’t matter what’s true and what’s not, that makes it all but impossible for us to make good decisions on behalf of future generations. It threatens the values of respect and tolerance that we teach our children and that are the source of America’s strength. It frays the habits of the heart that underpin any civilized society — because how we operate is not just based on laws, it’s based on habits and customs and restraint and respect. It creates this vacuum where baseless assertions go unchallenged, and evidence is optional. And as we’re seeing, it allows hostility in one corner of our politics to infect our broader society. And that, in turn, tarnishes the American brand.

That said, the irony in President Obama asking journalists to hold power to account, pushing for answers and access, was not lost on the journalists he praised, including Alec MacGillis, the recipient of this year’s Toner Prize.

More than a few people have highlighted why the president is a flawed messenger for any critique of journalism, given his administration’s record on press freedom.

“Obama’s own track record shows that if anyone isn’t being held accountable for the promises he’s made, it’s Obama himself – at least when it comes to the deep-diving investigative journalism he professes to want more of,” writes Sara Morrison in the Guardian.

“On the one hand, it’s a good thing that the President has been more open to new media than any of his predecessors, using Twitter and Instagram and Facebook to connect directly with Americans,” writes Mathew Ingram in Fortune. “But journalists who have been frozen out by the Obama administration complain that this feel-good strategy also acts as an end-run around the traditional media, and this strategy has insulated the government from direct questioning.”

“What makes Obama’s speech so unstomachable is the way he praises reporters at an award ceremony by calling their work “indispensable,” “incredible,” “worth honoring” and essential to democracy while simultaneously blocking honest press queries with all the formidable energies of his office,” wrote Jack Shafer in Politico.

As readers of this blog know, these criticisms have merit.

From flawed compliance with the Freedom of Information Act to limiting access to scientists or photographers or using the Espionage Act to prosecute media or cracking down on whisteblowers, the Obama administration’s record on press freedom is deeply problematic.

I wish the President had shown more introspection about his tenure in office, particularly with respect to acknowledging not only failing to support making the Freedom of Information Act policy and reforms he proposed but the fact that agencies actively lobbied against them.

If President Obama had done so, and publicly laid out how he would work to address those failures and the unmet promise of his administration’s commitments to open government in his last year in office, perhaps his remarks would have been received differently by the journalists he praised and criticized.

United States Releases Draft National Open Source Software Policy

IMG_1256On September 23, 2014, the White House announced that the United States would create an official policy for open source software. Today, the nation took a big step towards making more software built for the people available to the people.

“We believe the policies released for public comment today will fuel innovation, lower costs, and better serve the public,” wrote U.S. chief information officer Tony Scott in a blog post at WhiteHouse.gov, announcing that the Obama administration had published a draft open source policy and would now take public comments on it online.

This policy will require new software developed specifically for or by the Federal Government to be made available for sharing and re-use across Federal agencies. It also includes a pilot program that will result in a portion of that new federally-funded custom code being released to the public.

Through this policy and pilot program, we can save taxpayer dollars by avoiding duplicative custom software purchases and promote innovation and collaboration across Federal agencies. We will also enable the brightest minds inside and outside of government to review and improve our code, and work together to ensure that the code is secure, reliable, and effective in furthering our national objectives. This policy is consistent with the Federal Government’s long-standing policy of technology neutrality through which we seek to ensure that Federal investments in IT are merit-based, improve the performance of our Government, and create value for the American people.

Scott highlighted several open source software projects that the federal government has deployed in recent years, including a tool to find nearby housing counselors, NotAlone.gov, the College Scorecard, data.gov, and an online traffic dashboard. platform, and the work of 18F, which publishes all of its work as free and open software by default.

The draft policy is more limited than it might be: as noted by Greg Otto at Fedscoop, federal agencies will be required to release 20 percent of newly developed code as open source.

As Jack Moore reports at NextGov, the policy won’t apply to software developed for national security systems, a development that might prove disappointing to members of the military open source community that has pioneered policy and deployment in this area.

The draft policy sensibly instructs federal agencies to prioritize releasing of code that could have broader use outside of government.

The federal government is now soliciting feedback to the following considerations regarding its use of open source software.

Considerations Regarding Releasing Custom Code as Open Source Software

  • To what extent is the proposed pilot an effective means to fuel innovation, lower costs, benefit the public, and meet the operational and mission needs of covered agencies?
    • Would a different minimum percentage be more or less effective in achieving the goals above?
    • Would an “open source by default” approach that required all new Federal custom code to be released as OSS, subject to exceptions for things like national security, be more or less effective in achieving the goals above?
    • Is there an alternative approach that OMB should consider?
  • What are the advantages and disadvantages associated with implementing this type of pilot program? To what extent could this policy have an effect on the software development market? For example, could such a policy increase or decrease competition among vendors, dollar amounts bid on Federal contracts, or total life-cycle cost to the Federal Government? How could it impact new products developed or transparency in quality of vendor-produced code?
  • What metrics should be used to determine the impact and effectiveness of the pilot proposed in this draft policy, and of an open source policy more generally?
  • What opportunities and challenges exist in Government-wide adoption of an open source policy?
  • How broadly should an open source policy apply across the Government? Would a focus on particular agencies be more or less effective?
  • This policy addresses custom code that is created by Federal Government employees as well as custom code that is Federally-procured. To what extent would it be appropriate and desirable for aspects of this draft policy to be applied in the context of Federal grants and cooperative agreements?
  • How can the policy achieve its objectives for code that is developed with Government funds while at the same time enabling Federal agencies to select suitable software solutions on a case-by-case basis to meet the particular operational and mission needs of the agency? How should agencies consider factors such as performance, total life-cycle cost of ownership, security and privacy protections, interoperability, ability to share or reuse, resources required to later switch vendors, and availability of support?

If you have thoughts on any of these questions, you can email sourcecode@omb.eop.gov,
participate in discussions on existing issues on Github, start a new one, or make a pull request to the draft policy on Github. You can see existing pull requests here and view all comments received here.

With this policy, the White House has fulfilled one of the commitments added to the second National Action Plan for open government in the fall of 2014. While there has been limited progress (or worse) on of the dozens of other new and old commitments made in the three action plans published to date, this draft open source policy is a historic recognition of the principle that the source code for software developed by government agencies or contractors working for them can and should be released to other agencies and the general public for use or re-use.

Obama Administration Secretly Lobbied Against FOIA Reform In Congress

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A Freedom of Information Act lawsuit showed that the Obama administration vigorously lobbied against Freedom of Information Act reform in Congress.  The documents and correspondence, which were obtained through the Freedom of the Press Foundation’s lawsuit against the Justice Department and reported out by Jason Leopold at Vice Media, showed that the administration was literally lobbying against its own policy becoming law.

The Department of Justice’s six page memorandum shows that the agency opposed Congress making the exact language in Attorney General Eric Holder and President Obama’s 2009 memorandums on FOIA law.

The Justice Department opposing FOIA reform direct conflicts commitments made in the U.S. National Action Plan on Open Government required as part of its participation in  the Open Government Partnership.

I asked Ambassador Power how the United States can be a credible leader on open government if the White House and DoJ does this. In an alternate universe, she and the administration would respond publicly.

Unfortunately, it’s easy to predict the outcome of this news: publicly committing to open government reforms and then undermining them privately will erode abysmal levels of trust in government even more.

In the face of hypocrisy from the Justice Department on this count, the public should  call on their Senators to make the Freedom of Information Act reform legislation the House of Representatives passed in January into law.

Congress releases open data on bill status

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Imagine searching Facebook, Google or Twitter for the status of a bill before Congress and getting an instant result. That future is now here, but it’s not evenly implemented yet.

When the Library of Congress launched Congress.gov in 2012, they failed to release the data behind it. Yesterday, that changed when the United States Congress started releasing data online about the status of bills.

For the open government advocates, activists and civic hackers that have been working for over a decade for this moment, seeing Congress turn on the data tap was a historic shift.

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Congressional leaders from both sides of the aisle applauded the release of House and Senate bill status information by the U.S. Government Printing Office and Library of Congress.

“Today’s release of bill status information via bulk download is a watershed moment for Congressional transparency,” said House Majority Leader Kevin McCarthy (R-CA), in a statement. “By modernizing our approach to government and increasing public access to information, we can begin to repair the relationship between the people and their democratic institutions. The entire Congressional community applauds the dedication of the Legislative Branch Bulk Data Task Force, the Office of the Clerk, the House Appropriations Committee, GPO, and the Library of Congress, which worked together to make this progress possible.”

“Building off previous releases of bills and summaries, today’s release of bill status information largely completes the overarching goal of providing bulk access to all the legislative data that traditionally has been housed on Thomas.gov and now also resides on Congress.gov,” said Democratic Whip Steny Hoyer (D-MD). “This is a major accomplishment that has been many years in the making. It goes a long way toward making Congress more transparent and accessible to innovation through third party apps and systems. I applaud the dedicated civil servants who made this possible at the Legislative Branch service agencies, and I want to thank the Bulk Data Task Force for their leadership in this effort. While this largely completes a major goal of the Task Force, I look forward to continuing to workwith them to further modernize the U.S. Congress.”

The impact of open government data releases depend upon publicy and political agency. Releasing the states of bills before Congress in a way that can be baked in by third party apps and services is a critical, laudable step in that direction, but much more remains to be done in making the data more open and putting it to use and re-use. If the Library of Congress opens up an application programming interface for the data that supplies both Congress.gov and the public, it would help to reduce the asynchrony of legislative information between the public and elites who can afford to pay for Politico’s Legislative Compass or Quorum Analytics that is the status quo today.

In an era when Congress job approval ratings and trust in government are at historic lows, the shift didn’t make news beyond the Beltway. Govtrack.us, which is based upon data scraped from the Library of Congress, has been online for years. Until this XML data is used by media and technology companies in ways that provide the public with more understanding of what Congress is doing on their behalf and give them more influence in that legislative process, that’s unlikely to change quickly.