Category Archives: open government

Open government experts raise concerns about “mosaic effect” in open data policy

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“…one of the things we’re doing to fuel … more private sector innovation and discovery,” said President Barack Obama is to make the vast amounts of America’s data open and easy to access for the first time in history.”

That aspirational goal is one that countries around the world have taken on as their own over the past four years. Globally, officials are increasingly viewing open data as fundamental to democratic governance and development. That growth has naturally promoted new scrutiny and questions about what open data is and who benefits from its release.

“This comes at a time when there are significant doubts around the world about outcomes and best practices,” said John Wonderlich, policy director for the Sunlight Foundation, in an interview. “The White House’s new policies make clear that we don’t have all the answers, but there are ways forward, towards new data and better processes.”

Last week, Slate published my article exploring why a new executive order to open up federal government data is a big deal.

The article generally presents the new executive order and associated open data policy in a generally positive light, with one significant caveat: its effect upon or relevance to government transparency.

The focus that the President and his advisors have taken on “open data” is squarely upon entrepreneurship, innovation, and scientific discovery, not “transparency,” an issue his administration has faced substantial — and growing — criticism over after a promising start to his first term.

“Creating transparency and accountability through new technology won’t be achieved through a single policy, or just through cultural change or political commitments,” said Wonderlich. “What was so reassuring about this announcement is that the White House is still working on all of those areas. There are certainly some still missing, or some areas where the White House is less accountable, or more secretive (money in politics and national security still come to mind immediately) but this demonstrates that “open data,” if that phrase is to have lasting meaning, will evolve through a complex policy process.”

Steven Aftergood, however, questioned whether making government data open and machine-readable would have an effect on government secrecy, particularly in the intelligence world. Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, has been a long-time observer and critic of the culture and machinery of secrecy in the federal government.

A second caveat, which wasn’t in my Slate article, comes with respect to the inclusion of a warning about the so-called “mosaic effect” in the open data policy.

This effect, which originates in the intelligence world, describes a situation in which multiple pieces of data and information that are meaningless (or at least harmless or unclassified) on their own could be combined and analyzed to discover the identities of people, sensitive locations or other secrets.

That official consideration left journalists and open government advocates worried.

OpenTheGovernment.org praised aspects of the open data policy but expressed concern about potential exemptions from disclosure because of the mosaic effect. Scholars and journalists have long been concerned that the mosaic theory has been used to deny Freedom of Information Act requests.

While architects of Data.gov and former US CIO Vivek Kundra have acknowledged concerns about the mosaic effect in the past, formal articulation in the policy is a new wrinkle.

In answer to my question about this precise concern at a press conference at the FOSE Conference in Washington last week, US CIO Steven VanRoekel said that nothing in the executive order or in the open data policy would allow the federal government to restrict the release of information requested under the Freedom of Information Act.

Federal agencies will “still follow FOIA to the letter,” said VanRoekel. “Nothing about executive orders and policy changes law.”

Whether or not this new policy is used to restrict sensitive information will be seen in the months and years ahead. In the meantime, concern is probably better focused upon the dangerous parallel the Department of Justice is making between espionage and investigative journalism.

Russia withdraws from Open Government Partnership. Too much transparency? [UPDATED]

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russia-OGP

“Inevitably, there will be questions about what we are each prepared to sign up to,” said British Prime Minister David Cameron in January, in his letter to his fellow G8 leaders. For months later, Russia has made clear it clear what it wasn’t willing to sign onto: the Open Government Partnership (OGP). The most recent update on Russia is that the Kremlin will be pursuing “open government” on its own terms. Russia has withdrawn the letter of intent that it submitted on April 2012 in Brazil, at the first annual meeting of the Open Government Partnership.

Update: On May 23, The Moscow Times reported that Russia had just “postponed” its entry into OGP. Presidential spokesman Dmitry Peskov told Russian daily newspaper Kommersant that “we are not talking about winding up plans to join, but corrections in timing and the scale of participation are possible.” Open government advocate  David Eaves interprets this state of affairs to mean A) “transparency matters” and B) that “Russia may still be in OGP. Just not soon. And maybe never.” For now, Russia has withdrawn its letter of intent to join the Open Government Partnership and with that action, its commitments to transparency. OGP itself has  “adjusted” its website to reflect the change, which is to say that the former page for Russia can no longer be found. So what will open government mean in the largest country in the world? Read on.

If the dominant binary of the 21st century is between open and closed, Russia looks more interested in opting towards more controllable, technocratic options that involve discretionary data releases instead of an independent judiciary or freedom of assembly or the press.

One of the challenges of the Open Government Partnership has always been the criteria that a country had to pass to join and then continue to be a member. Russia’s inclusion in OGP instantly raised eyebrows, doubts and fears last April, given rampant corruption in the public sector and Russia’s terrible record on press freedom.

“Russia’s withdrawal from the OGP is an important reminder that open government isn’t easy or politically simple,” said Nathaniel Heller, executive director of Global Integrity. “While we don’t yet fully understand why Russia is leaving OGP, it’s safe to assume that the powers that be in the Kremlin decided that it was untenable to give reformers elsewhere in the Russian government the freedom to advance the open government agenda within the bureaucracy.”

The choices of Russian Prime Minister Dimitri Medvedev, who had publicly supported joining the OGP and made open government a principle of his government, may well have been called into question by Russia’s powerful president, Vladimir Putin.

Medvedev had been signaling a move towards adopting more comfortable sorts of “openness” for some time, leading up to and following Russia joining the Open Government Partnership in December 2012. Russia’s prime minister has sought to position himself as a reformer on the world stage, making a pitch at Davis for Russia being “open for business” earlier this year at the Davos economic forum. Adopting substantive open government reforms could well make a difference with respect to foreign investors concerns about corruption and governance.

While the Kremlin shows few signs of loosening its iron grip on national security and defense secrets, Russia faces the same need to modernize to meet the increasing demand of its citizens for online services as every developed nation.

Even if Russia may not be continue its membership in the Open Government Partnership, the Russian government’s version of “openness” may endure, at least with respect to federal, city and state IT systems. Over the winter, a version of “Open Government a la Russe” – in Cyrillic, большоеправительство or “big government” — seemed to accelerating at the national level and catching on in its capital. Maybe that will still happen, and Russion national action plan will go forward.

“While Russia’s approach to open government may be primarily technocratic, there’s a sense in which even the strongest legal requirements are only tools we give to our allies in governments,” said John Wonderlich, policy director at the Sunight Foundation. “FOI officers analyzing records, or judges deciding whether or not to enforce laws are embodying both legal and cultural realities when they determine how open a country will be, just as much as policy makers who determine which policies to pass. While Russia’s initial commitment to OGP was likely a surprising boon for internal champions for reform, its withdrawal will also serve as a demonstration of the difficulty of making a political commitment to openness there.”

What is more clear, however, is that the Kremlin seems much more interested the sort of “open government” that creates economic value, as opposed to sustaining independent auditors, press or civil society that’s required in functional democracies. Plutocracy and kleptrocacy doesn’t typically co-exist well open, democratic governments — or vice versa.

Given that the United States efforts on open government prominently feature the pursuit of similar value in releasing government data, Russia’s focus isn’t novel. In fact, “open data” is part of more than half of the plans of the participating countries in OGP, along with e-government reforms. In May of 2012, a presidential declaration directed governmental bodies to open up government data.

In February, Moscow launched an open data platform, at data.mos.ru, that supplied material for digital atlas of the city. Russia established an “open data council” the same month. Those steps forward could stand to benefit Russian citizens and bring some tangential benefits to transparency and accountability, if Russia and its cities can stomach the release of embarrassing data about spending, budgets or performance.

While some accounts of open government in Russia highlighted the potential of Russia to tap into new opportunities for innovation afforded by connected citizenry that exist around the world, crackdowns on civil society and transparency organizations have sorely tested the Russian government’s credibility on the issue. This trial of anti-corruption blogger Alexey Navalny for corruption this spring showed how far Russia has to go.

“Open government isn’t just open data nor is it e-government, two areas in which the Russian Federal had appeared to be willing to engage on the open government agenda,” said Heller. “Many observers doubted how far Russia could take open government in a climate of political repression, civil society crackdowns, and judicial abuse of power.”

Today’s news looks like a victory of conservatives in the Kremlin over government reformers interested in reducing corruption and adopting modern public sector management techniques. “We need to use modern technologies, crowd sourcing,” said Medvedev said in January 2013. “Those technologies change the status and enhance the legitimacy of decisions made in government.”

Changes in technology will undoubtedly influence Russia, as they will every country, albeit within the cultural and economic context of each. This withdrawal from OGP, however, may be a missed opportunity for civil society, at least with respect to losing a lever for reform, reduced corruption and institutions accountable to the people. Leaving the partnership suggests that Russia may be a bit scared of real transparency, or least the sort where the national government willing allows itself to be criticized by civil society and foreign non-governmental organizations.

It’s something of a mixed victory for the Open Government Partnership, too: getting to be a member and stay one means something, after all.

“For the Open Government Partnership, this will be seen as a bit of a blow to their progress, but its success was never predicated on getting every qualifying government to join,” said Wonderlich. “In a sense, Russia’s withdrawal may alleviate the need for OGP to grapple with Russia’s recent, severe treatment of NGOs there. More broadly, Russia’s withdrawal may better define the space in which the OGP mechanism can function well. Building a movement around commitments from heads of state has allowed OGP’s ranks to rapidly grow, but we’re also probably entering a new time for OGP, where the depth and reliability of those commitments will become clearer. Transitions between governments, domestic politics, corruption scandals, hypocritical behavior, uncooperative legislatures, exclusion of domestic NGOs, and internal power struggles may all threaten individual national commitments, and OGP will need to determine how to adapt to each of these challenges. OGP will need to determine whether it wants to be the arbiter of appropriate behavior on each of these dimensions, or whether its role is better left to the commitments and National Action Plans on which it was founded. ”

If OGP is to endure and have a meaningful impact on the world, its imprimatur has to have integrity and some weight of moral justice, based upon internationally shared norms on human rights and civil liberties. As press freedom goes, so to does open government and democracy.

“International boosters of open government may want to remain cautious at embracing open government reformers at the first whiff of ‘openness’ or rhetorical commitment to the agenda,” said Heller. “Within weeks of Russia first making noise around joining OGP, the World Bank and others rushed to assemble a major international conference in the country around open government to boost reformers inside the bureaucracy as they sought to move the country into OGP. While no one should criticize those efforts, they are a sobering reminder that initial rhetorical commitment to open government can only take us so far, and it’s wise to keep the political powder dry for other downstream fights.”

Given the scale of bribery and the impact of corruption on growth, Russians can only hope that more “openness” with teeth comes to their country soon.

As press freedom goes, so too does open government and democracy

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I’m on the brink of having a Howard Beale moment.

This morning, Al Thompkins wrote that the Justice Department ‘better have a damned good explanation’ for seizing AP phone records. The nation is still waiting. So is the world.

This week, my Poynter colleagues and I are teaching on three continents. One of my colleagues is teaching in China. Another is in South Africa. I’m in Canada. Everywhere we go, we hear stories of governments trying to restrict journalists. South Africa has a new government secrecy bill; Turkey is trying to restrict reporting from border-town bombing sites; Pakistan ejected an American journalist trying to cover elections; and a Chinese journalist is in jail accused of publishing video that caused “a bad impression abroad.”

Recently, Reporters Without Borders ranked the U.S. 32nd on its list of countries in terms of press freedom. When I saw that the U.S. was ranked below Ghana and barely above El Salvador, I wondered if there must be some mistake. But now I wonder if that survey ranked our press freedom too high.

Thompkins is right. We need to know why notifying the Associated Press in advance of getting the records from Verizon “would pose a substantial threat to the integrity of the investigation.”

Deputy United States Attorney General James Cole stated that such an intrusion was warranted and were “consistent with department policy.” Walter Pincus agrees.

US Attorney General Eric Holder, who recused himself from the investigation, said that “this was a very serious leak — a very, very serious leak,” “among the top two or three serious leaks that I’ve ever seen,” putting the American people “at risk” and that “trying to determine who was responsible for that required very aggressive action.”

Should that action have included a judge?

In the absence of a federal shield law for journalists, judicial oversight is a bulwark against tyranny.

As New Yorker general counsel Lynn Oberlander on the law behind the Justice Department seizure of AP phone records, the courts do not appear to have been involved:

If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

The nation is seeing that the balance between government secrecy, civil liberties and freedom of the press has become far too weighted in favor of the federal government. Attorney General Holder defended the independence of the leak investigation last year before Congress.

If President Obama wants to retain credibility on the world stage or at home when he talks about open government and the rule of law, his administration will need to take a strong stance, as it did with respect to management flaws at the I.R.S. that allowed conservative groups to be targeted for tax audits.  As Nathaniel Heller pointed out this week, there’s some cognitive dissonance going on:

This administration’s track record on what can be argued are the easier bits of open government is more than laudable. An initial Open Government Directivehas been augmented with the new open data policy, and we’ve witnessed the launch of an international Open Government Partnership, which began as a White House brainchild. But during that very same period we’ve witnessed the administration getting worse on the politically harder bits: freedom of information response times have deteriorated, reporters are being chased down to divulge their sources, and now entire newsrooms are apparently being targeted in broad, scarily police state-style monitoring. What the heck is going on here?

There’s a lot at stake here, to dramatically understate the obvious.

As New York Times public editor Margaret Sullivan wrote today, “The ability of the press to report freely on its government is a cornerstone of American democracy. That ability is, by any reasonable assessment, under siege. Reporters get their information from sources. They need to be able to protect those sources and sometimes offer them confidentiality. If they can’t be sure about that – and it looks increasingly like they can’t – the sources will dry up. And so will the information.”

The White House, Congress, Department of Justice and the American people cannot afford to let that happen. Information is the life blood of democracy. A free press is core to its gathering and dissemination, as are whistleblowers who tell the nation when crimes and fraud are being committed behind closed doors. Prosecuting whistleblowers is antithetical to open government.

Our founding fathers understood this dynamic well:

“The functionaries of every government have propensities to command at will the liberty and property of their constituents,” wrote Thomas Jefferson. “There is no safe deposit for these but with the people themselves, nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe.”

We need to know more about why this action was taken by the Department of Justice. We also need to know why there is a disconnect between the rhetoric expressed by the President of the United States, a constitutional law professor, regarding freedom of the press and the zealous actions of the Department of Justice towards leaks.

Josh Gerstein reports that the issue may lie with the White House’s “hands off style” with respect to the DoJ:

”This White House, out of concern to distance itself from what was seen as excess politicization of DOJ by the Bush administration, had not engaged DOJ at all on leak cases,” said Columbia University law professor David Pozen, who spent several months conducting a major review of the federal government’s love-hate relationship with national security leaks. ”

In previous White Houses, even those railed publicly against leaks, officials sent “cautionary signals to the Justice Department … urging restraint and sensitivity to political, policy and constitutional concerns,” Pozen said. But the administration’s distancing policy, said Pozen, meant that prosecutors were “being given more leash than they had previously to do what they do.”

If so, it’s long past time for President Obama to get more hands-on.

UPDATE: Both the president and his attorney general have acknowledged the criticism. In his remarks to the National Defense University on May 23rd, President Obama said that he was “I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable” and told AG Holder to take action on the issue.

The Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society.  As Commander-in-Chief, I believe we must keep information secret that protects our operations and our people in the field.  To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information.  But a free press is also essential for our democracy.  That’s who we are.  And I’m troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.

Journalists should not be at legal risk for doing their jobs.  Our focus must be on those who break the law.  And that’s why I’ve called on Congress to pass a media shield law to guard against government overreach.  And I’ve raised these issues with the Attorney General, who shares my concerns.  So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and he’ll convene a group of media organizations to hear their concerns as part of that review.  And I’ve directed the Attorney General to report back to me by July 12th.

According to David Klaidman’s reporting, AG Holder regrets at least some of how the DoJ has proceeded, with respect to prosecuting leaks. (He personally approved a search-warrant application that equated the newsgathering activities of Fox News reporter James Rosen with criminal conduct.)

“While both of these cases were handled within the law and according to Justice Department guidelines,” he told The Daily Beast, “they are reminders of the unique role the news media plays in our democratic system, and signal that both our laws and guidelines need to be updated…This is an opportunity for the department to consider how we strike the right balance between the interests of law enforcement and freedom of the press.”

This morning, a Justice Department official told Mike Allen that the AG will be meeting with members of the media this week:

“Attorney General Eric Holder will hold meetings with several Washington bureau chiefs of national news organizations in the next two days as part of the review of existing Justice Department guidelines governing investigations that involve reporters. This review, which was announced by President Obama last Thursday, is consistent with the Attorney General’s long standing belief that protecting and defending the First Amendment is essential to our democracy. These meetings will begin a series of discussions that will continue to take place over the coming weeks. During these sessions, the Attorney General will engage with a diverse and representative group of news media organizations, including print, wires, radio, television, online media and news and trade associations. Further discussions will include news media executives and general counsels as well as government experts in intelligence and investigative agencies.”

Per Michael Calderone, however, “the actual discussion is expected to be off the record.”

UPDATE 2: The Department of Justice released a report on news media policies (PDF) on July 12th.

“The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press,” said United States Attorney General Eric Holder, in a prepared statement. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures. While these reforms will make a meaningful difference, there are additional protections that only Congress can provide. For that reason, we continue to support the passage of media shield legislation. I look forward to working with leaders from both parties to achieve this goal, and am grateful to all of the journalists, free speech advocates, experts, and Administration leaders who have come together in recent weeks – in good faith, and with mutual respect – to guide and inform the changes we announce today.”

Excerpt from report (emphases are mine):

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under this revised policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.

Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.C. directed at members of the news media. In addition, as part of the new approval process the Attorney General would consider the factors in 28 CFR. 50.10 — which currently apply to subpoenas to members of the news media or to communication service providers for the telephone toll records of members of the news media, but not to search warrants or 2703(d) orders — including demonstrating that the information sought is essential to a successful investigation, that other reasonable alternative investigative steps to obtain the information have been exhausted, and that the request has been narrowly tailored to obtain only the information necessary for the investigation (including the use of search methods that limit any intrusion into potentially protected materials, as described above). The presumption of notice, and standards applicable to requests for delayed notice, will also apply to search warrants and 2703(d) orders that seek access to records of members of the news media related to newsgathering activities. A thorough evaluation of relevant considerations, including these factors, will be presented to the Deputy Attorney General, and ultimately the Attorney General, for authorization. This policy change will bring the approval protocols for search warrants issued under the PPA and 27D3(d) orders in line with those required for other investigative tools that implicate records of members of the news media.
 

The complete report and set of revised policies are online on Document Cloud, via New York Times reporter Charlie Savage, or at Justice.gov. For more analysis, read his report for the New York Times regarding AG Holder tightening the rules for obtaining reporters’ data. Now, the onus to protect freedom of the press in the United States is now upon Congress, including recognizing the public interest of preserving acts of journalism through enactment of a federal shield law. How Congress or the DoJ defines journalists will have real consequences, in terms of how their electronic communications are acquired or monitored. Marcy Wheeler reads this policy as the DoJ moving closer to instituting a physical press. Journalism professor Dan Gillmor reads that to mean that licensing journalists will be proposed in the United States.

Historical parallels aside…

…the question of “who is a journalist?” is of vital public interest, as Jeff Jarvis explored in The Guardian today. A 2010 report from the Center for International Media Assistance (CIMA) concluded that licensing journalists threatens independent media and press freedoms. The First Amendment Center similarly argues that licensing journalists is a bad idea. Congress and the Department of Justice would be well advised to steer clear of registering the media, which has historically been used around the world by governments to delegitimize reporting and speech officials do not wish published, from reporting on corruption to waste, fraud or embarrassing actions.

At a time when technology has democratized reporting in unprecedented ways, enabling individuals to commits acts of journalism around the world, perhaps it’s time to acknowledge that freedom of the press now applies to everyone.

UPDATE:

UPDATE: On January 14, 2015, U.S. Attorney General Holder issued a memorandum (PDF) laying out new guidelines for how the Department of Justice will obtain information or records from the media.

“These revised guidelines strike an appropriate balance between law enforcement’s need to protect the American people, and the news media’s role in ensuring the free flow of information,” Holder said, in a statement. “This updated policy is in part the result of the good-faith dialogue the department has engaged in with news industry representatives over the last several months. These discussions have been very constructive and I am grateful to the members of the media who have worked with us throughout this process.”

These guidelines broaden protections for the media, as Josh Gerstein reported for Politico, with caveats:

…the revised guidelines make clear that Justice Department personnel must get high-level approval—usually from the attorney general personally—before going to court to enforce subpoenas other federal agencies sometimes issue to reporters or their phone or internet providers. Such disputes have arisen or loomed with various agencies, including the Department of Homeland Security, whose officials subpoenaed travel bloggers in 2009 and took part in the search of a Washington Times writer’s home in 2013.

Details of the new policy made public late Wednesday showed it also satisifed a particular request media advocates had made: that department lawyers be required to get a second round of high-level approvals before moving to enforce a subpoena that was authorized at some earlier time. DOJ attorneys will have to check in with the Criminal Division in Washington before making such a move, the revised guidelines say.

The revised rules continue to give prosecutors more leeway in pursuing journalists whom the U.S. Government believes are part of a foreign country’s intelligence services or tied to some other foreign power.

Fung outlines principles for democratic transparency and open government

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Archon Fung has published a new paper” [PDF] on open government, information and democracy. The abstract includes a useful breakdown of the components of democratic transparency:

In Infotopia, citizens enjoy a wide range of information about the organizations
upon which they rely for the satisfaction of their vital interests. The provision of
that information is governed by principles of democratic transparency. Democratic
transparency both extends and critiques current enthusiasms about transparency. It
urges us to conceptualize information politically, as a resource to turn the behavior of
large organizations in socially beneficial ways. Transparency efforts have targets, and we
should think of those targets as large organizations: public and civic, but especially private
and corporate. Democratic transparency consists of four principles. First, information
about the operations and actions of large organizations that affect citizens’ interests
should be rich, deep, and readily available to the public. Second, the amount of available
information should be proportionate to the extent to which those organizations
jeopardize citizens’ interests. Third, information should be organized and provided in
ways that are accessible to individuals and groups that use that information. Finally, the
social, political, and economic structures of society should be organized in ways that
allow individuals and groups to take action based on Infotopia’s public disclosures.

Fung’s paper focuses on focus upon “information about the activities of
large organizations—especially corporations and governments—rather than individuals” and “the important, defensive, face of the informational problem: information that people need to protect themselves against the actions of large organizations and to navigate the terrain created by such organizations,” as opposed to the myriad positive uses of open government data.

President Obama issues historic executive order making open data the new default in federal government

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This morning, the White House released a new executive order from President Barack Obama that makes “open and machine readable” the new default for the release of government information.

The White House also published a memorandum regarding the policy that goes with it and a new website on Github that offers more context and resources on Project Open Data.

Below, U.S. CTO Todd Park and U.S. CIO Steven VanRoekel talk about landmark steps to liberate more open data defined in the new order and what the new policy will mean:

One big question is whether data that is currently being bought by big business and startups — or obtained under FOIA — is now identified and released. Business interest in government data is longstanding, from Bloomberg to Reuters to Lexis-Nexis. New players exist now, particularly Google, and I expect them to consume data as it becomes available and make it usable, useful and economically significant.

At a broader level, the new policy defines machine-readable as the default and instructs agencies to do data inventories. That may sounds simple, to a layman, but it’s a big deal, if the administration can drive implementation and make this more than another compliance exercise.

We’ll see. John Wonderlich is right: this open data executive order is a step in the right direction and shows a path forward.

Later today, the President is going to talk about this order in Texas, elevating open data into the national discussion. I expect the conversation that results to be interesting. I’ll be speaking with the US CIO as well, so if you have questions, please let me know at @digiphile on Twitter or weigh in in the comments.

Will Maryland’s new open data initiative be a platform for a more open government?

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Maryland joined 39 other states in the union when it officially launched its open data inititive on Wednesday.

Governor Martin O’Malley unveiled Data.Maryland.gov at a panel discussion in Annapolis on Wednesday, at a panel discussion hosted in conjunction with the Future of Information Alliance (FIA), an inter-disciplinary partnership between the University of Maryland, College Park and 10 founding partners.

“Big data is forever changing the way we manage, market, and move information, and in Maryland, it is also changing the way we govern with better choices and better results,” said Governor O’Malley. “Together, we set public goals, relentlessly measure government performance on a weekly basis, broadly share information, and put it on the internet for all to see. We publicly identify our problems and crowd source the solutions with open access to data. That’s why today we’re launching data.maryland.gov – a movement away from ideological, hierarchal, bureaucratic governing and toward information-age governing that is fundamentally entrepreneurial, collaborative, relentlessly interactive and performance driven.”

The path to standing up Maryland’s new open data platform extends back into the last decade when the O’Malley administration and the state’s legislature first started taking substantive steps towards putting more government data online.

These efforts were preceded by two important open government laws that laid a foundation for transparency in the 21st century:

1970: Maryland passes Public Information Act that established the public’s right to inspect public records, providing that “[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.”

1977: Maryland passes an Open Meetings Act to “allow the general public to view the entire deliberative process.”

2008: Governor O’Malley launched StateStat, publishing performance and management statistics online. The governor subsequently touted the use of performance data a year later as a way to save taxpayer dollars. “RSS, XML, GIS, API: this is what smart, transparent governance will look like in the years ahead,” he said.

2010: Maryland webcasts more hearings and meetings online.

June 2011: Maryland General Assembly establishes a Joint Committee on Transparency and Open Government

April 2012: (Former) Maryland chief innovation officer Bryan Sivak hosts open data roundtable. [Baltimore Sun]

December 2012: Maryland Governor Martin O’Malley establishes an open data working group with an executive order. [Maryland.gov]

May 2013: Maryland launches data.maryland.gov using Socrata’s cloud-based open data platform.

Whither open government?

While the launch of an open data platform is an important digital milestone, it doesn’t in of itself address substantive concerns about Maryland’s open government challenges. TechPresident asked whether Maryland becoming the open government state in 2011, a question that came loaded with decades of context.

On the one hand, the new open data is a substantive step towards addressing the criticisms of open government advocates who noted that Maryland was lagging other states in the nation in its digital initiatives.

On the other, the 236 datasets on data.maryland.gov at launch do not include spending data. Many transparency advocates would like to see that change: Maryland received a low grade in PIRG’s annual report on government spending, as examined through the prism of  data delivering online.

According to PIRG, “Maryland’s transparency website, which garnered a ‘C’ grade, provides checkbook-level information on contracts and other expenditures. However, it lacks detailed information on economic development tax credits and the projected and achieved benefits of economic development subsidies.”

The state government’s compliance with Maryland’s Freedom of Information Act (PDF) is also unclear. While journalists, researchers and other freedom of information requestors now have a new way to ask for data (a nominate button on the new open data website) if they don’t receive an immediate reply, they’ll be hard-pressed to know who to turn to in individual agencies. There is, as of yet, no comprehensive list of Maryland FOIA officers online yet, nor independent institution, auditor or ombudsman with statutory authority to ensure that FOIA requests are complied with in a timely or effective manner.

It’s unclear whether any of this new open data will substantially mitigate Maryland’s record on transparency. According to report card by State Integrity, Maryland ranks 40th in the nation when assessed on 14 different categories</a.

While access to electronic information may improve, Maryland’s story includes a political history rife with corruption in the latter part of the 20th century and a present marked by murky procurement policies, oft-ignored auditors’ reports, spotty access to information and limitied executive and legislative branch accountability.

As Christian Borge detailed for Public Integrity in August of 2012, Maryland faces open government challenges around lobbying, contracting and political cronyism. Websites like StateStat, BayStat, and GreenPrint have featured data disclosures made at the discretion of the O’Malley administration, as is the case with this new open data platform. The state of play in Maryland is an excellent example of the ambiguity of open government and open data, where states release data relevant to services, performance or of economic value but not requests from the media for information related to the exercise (or abuse) of power, the existence of policial corruption or potentially embarrassing errors.

This state of affairs is what led to iSolon.org president Jim Snider to decry Maryland’s fake open government in 2010, much as open government advocates have criticized the Obama administration’s record on open data, open government and FOIA compliance. As Snider pointed out in March, Maryland’s Board of Elections also has serious open government issues.

Whether any of this figures into the 2014 election for governor remains to be seen. Maryland Attorney General Doug Gansler is a leading contender in the crowded field in the developing 2014 MD gubernatorial race. Whether the leading law enforcement official in Maryland chooses to make open data or open government part of the issues in his campaign is, like the political winds in Annapolis, not clear. To date, Gansler’s record on technology primarily has focused upon targeting sexual predators on social networking sites, not using digital technology to make Maryland government more open, transparent or accountable to its 5.8 million people.

None of this means that Maryland’s new open data initiative won’t matter for government transparency, improved civic services or economic activity in the private sector. This step forward does matter and adds what increasingly looks like a basic building block for governance to Maryland’s toolkit. It just means that the citizens of the Old Line State by the Bay need to keep asking for more than data from their elected officials.

Beware openwashing. Question secrecy. Acknowledge ideology.

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You could spend a long day listing all of the organizations or individuals who are putting government data online, from Carl Malamud to open government activists in Brazil, Africa or Canada. As many conversations in the public domain over the past few years have demonstrated, there are many different perspectives on what purposes “open data” should serve, often informed by what advocates intend or related to an organization or institution’s goals. For those interested, I recommend the open data seminar and associated comments highly.

When and if such data includes ratings or malpractice information about hospitals or doctors, or fees for insurance companies, transparency and accountability is an important byproduct, which in turn does have political implications. (Watch the reaction of unions or doctors’ groups to performance or claims data going online for those conflicts.)

There are people who want to see legislatures open their data, to provide more insight into those processes, and others who want to to see transit data or health data become more open, in the service of more civic utility or patient empowerment.

Other people may support publishing more information about the business or performance of government because evidence of fraud, mismanagement or incompetence will support their arguments for shrinking the size of the state. A big tent for open government can mean that libertarians could end up supporting the same bills liberals do.

In the U.S., Govtrack.us has been making government legislative data open, despite the lack of bulk access to Thomas.gov, by “scraping.” There are many people who wish to see campaign finance data open, like the Sunlight Foundation, to show where influence and power lies in the political system. There are many members of civil society, media organizations and startups that are collecting, sharing or using open data, from OpenCorporates to OpenCongress, to Brightscope or ProPublica.

Whether anyone chooses to describe those activities as a movement is up to them — but it is indisputable that 3 years ago, a neutral observer would be hard-pressed to find an open government data platform. Now there are dozens at the national level. What matters more than their existence is what goes onto them, however, and there people have to be extremely careful about giving governments credit for just putting a “portal” online.

While the raw number of open government data platforms around the globe looks set to continue to increase in 2013 at every level of government, advocates should be wary of governments claiming “open government” victories as a result.

//platform.twitter.com/widgets.jsSince Morozov sent out that tweet, he’s published a book with a chapter that extends that critique, along with a series of New York Times op-eds, reviews, Slate debates, and a 16,000 word essay in The Baffler that explores the career and thinking of Tim O’Reilly (my publisher). Morozov’s essay catalyzed Annaleen Newitz to paraphrase and link to it at post at iO9, where Tim responded to in a comment.

While his style can distract and detract from his work — and his behavior on Twitter can be fairly characterized as contemptuous at times — the issues Morozov raises around technology and philosophy are important and deserve to be directly engaged by open government advocates, as John Wilbanks suggests.

 

 

That’s happening, slowly. Sunlight Foundation policy director John Wonderlich has also responded, quoting Morozov’s recommendations to reflect out how he might specific uses of technology that support open government. Wilbanks himself has written one of the most effective (short) responses to date:

One of the reasons I do “open” work is that I think, in the sciences, it’s a philosophical approach that is more likely to lead to that epistemic transformation. If we have more data available about a scientific problem like climate change, or cancer, then the odds of the algorithms figuring something out that is “true” but incomprehensible to us humans go up. Sam Arbesman has written about this nicely both in his book the Half Life of Facts and in another recent Slate article.

I work for “open” not because “open” solves a specific scientific problem, but because it increases the overall probability of success in sensorism-driven science. Even if the odds of success themselves don’t change, increasing the sample size of attempts will increase the net number of successes. I have philosophical reasons for liking open as well, and those clearly cause me cognitive bias on the topic, but I deeply believe that the greatest value in open science is precisely the increased sample size of those looking.

I also tend to think there’s a truly, deeply political element to enabling access to knowledge and science. I don’t think it’s openwashing (and you should read this paper recommended by Morozov on the topic) to say that letting individuals read science can have a real political impact.

Morozov’s critique of “openwashing” isn’t specious, though it’s fair to question his depiction of the history of open source and free software and an absence of balance in his consideration of various open government efforts. Civil society and media must be extremely careful about giving governments credit for just putting a “portal” online.

On that count, Wonderlich wrote about the “missing open data policy” that every government that has stood up or will stand up an open data platform could benefit from reading:

Most newly implemented open data policies, much like the Open Government Directive, are announced along alongside a package of newly released datasets, and often new data portals, like Data.gov. In a sense, these pieces have become the standard parts of the government data transparency structure.  There’s a policy that says data should generally be open and usefully released, a central site for accessing it, some set of new data, and perhaps a few apps that demonstrate the data’s value.

Unfortunately, this is not the anatomy of an open government.  Instead, this is the anatomy of the popular open government data initiatives that are currently in favor. Governments have learned to say that data will be open, provide a place to find it, release some selected datasets, and point to its reuse.

This goes to the concerns of traditional advocates working for good government, as explored in a excellent research paper by Yu and Robinson on the ambiguity of open government and open data, along with the broader discussion you’ll find in civil society in the lead up to the Open Government Partnership, where this dynamic was the subject of much concern — and not just in the Canadian or United Kingdom context. The work exploring this dynamic by Nathaniel Heller at Global Integrity is instructive.

As I’ve written before (unrepentant self-plagiarism alert), standing up open data platforms and publishing data sets regarding services is not a replacement for a Constitution that enforces a rule of law, free and fair elections, an effective judiciary, decent schools, basic regulatory bodies or civil society, particularly if the data does not relate to meaningful aspects of society.

Socrata, a venture-capital backed startup whose technology powers the open data platforms of several city, state and federal governments, including Kenya and the United States, is also part of this ecosystem and indisputably has “skin in the game.”

That said, the insights that Kevin Merritt, the founder of Socrata, shared in post on reinventing government are worth considering:

An open Government strategy needs to include Open Data as a component of enabling transparency and engaging citizens. However, Open Government is also about a commitment to open public meetings; releasing public information in all its forms, if not proactively at least in a timely fashion; engaging the public in decision making; and it is also a general mindset, backed up by clear policy, that citizens need to be empowered with information and a voice so they can hold their government accountable.

At the same time, a good Open Data strategy should support Open Government goals, by making structured data that relates to accountability and ethics like spending data, contracts, staff salaries, elections, political contributions, program effectiveness…etc. available in machine- and human-readable formats.

The open data strategy advanced by the White House and 10 Downing Street has not embraced releasing all of those data types, although the Obama administration did follow through on the President’s promise to launch Ethics.gov.

The Obama administration has come under heavy criticism for the quality of its transparency efforts from watchdogs, political opponents and media. It’s fair to say that this White House has advanced an unprecedented effort to open up government information while it has much more of mixed record on transparency and accountability, particularly with respect to national security and a culture of secrecy around the surveillance state.

Open government advocates assert that the transparency that President Obama promised has not been delivered, as Charles Ornstein, a senior reporter at ProPublica, and Hagit Limor, president of the Society of Professional Journalists, wrote in the Washington Post. In fact, the current administration’s open data initiatives are one of the bright spots its transparency record — and that’s in the context of real data quality and cultural issues that need to be addressed to match the rhetoric of the past four years.

“Government transparency is not the same as data that can be called via an API,” said Virginia Carlson, former president of the Metro Chicago Information Center. “I think the ‘New Tech’ world forgets that — open data is a political process first and foremost, and a technology problem second.”

If we look at what’s happening with open government in Chicago, a similar dynamic seems to have emerged, as the city methodically works to release high quality open data related to services, performance or lobbying but is more resistant to media organizations pushing for more access to data about the Mayor’s negotiations or electronic communications, the traditional targets of open government advocacy. This tension was explored quite well in an article by WBEZ on the people behind Chicago’s government 2.0 efforts.

In the United States, there is a sizable group of people that believe that data created using public funds should in turn be made available to the public — and that the Internet is a highly effective place to make such data available. Such thinking extends to open access to research or public sector code, too.

As those policy decisions are implemented, asking hard questions about data quality, use, licenses, outcomes and cost is both important and useful, particularly given that motivations and context will differ from country to country and from industry to civil society.

Who benefits and how? What existing entities are affected? Should all public data be subject to FOIA? If so, under what timelines and conditions? Should commercial entities that create or derive economic value from data pay for bulk access? What about licensing? If government goes digital, how can the poor, disabled or technically illiterate be given access and voice as well? (Answers to some of these questions are in the Sunlight Foundation’s principles of open government data, which were based on the recommendatations of an earlier working group.)

In the United Kingdom, there are also concerns that the current administrations “open data agenda” obscures a push towards privatization of public services should be more prominent in public debates, a dynamic that Morozov recently explored in the opinion pages of the New York Times. My colleague, Nat Torkington, highlighted the needs for a discussion about which services should be provided by government at Radar back in 2010:

Obama and his staff, coming from the investment mindset, are building a Gov 2.0 infrastructure that creates a space for economic opportunity, informed citizens, and wider involvement in decision making so the government better reflects the community’s will. Cameron and his staff, coming from a cost mindset, are building a Gov 2.0 infrastructure that suggests it will be more about turning government-provided services over to the private sector.

Whether one agrees with the side of the argument that supports investment or the other that is looking for cost-savings — or both — is something that people of democratic societies will need to debate and decide for themselves, along with the size and role of government. The politics can’t be abstracted away.

I don’t think that many open government advocates are blind to the ideologies involved, including the goals of libertarians, nor that the “open dystopia” that Newitz described at iO9 is a particularly likely outcome.

That said, given the stakes, these policies deserve to be the subject of debate in every nation whose leaders are putting them forward. We’ve never had better tools for debate, discussion and collective action. Let’s use them.

Cameras in the courtroom: Will SCOTUS ever go live online?

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In an age where setting up a livestream to the Web and the rest of the networked world is as easy as holding up a smartphone and making a few taps, the United States Supreme Court appears more uniformly opposed to adding cameras in the courtroom than ever.
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