Yesterday afternoon, the Office of the Director of National Intelligence began tumbling towards something resembling more transparency regarding the National Security Agency’s electronic surveillance programs.
The new tumblog, “Intelligence Community on the Record,” is a collection of statements, declassified documents, congressional testimony by officials, speeches & media, interviews, fact sheets, details of oversight & legal compliance, and video. It’s a slick, slim new media vehicle, at least as compared to many government websites, although much of the content itself consists of redacted PDFs and images. (More on that later.) It’s unclear why ODNI chose Tumblr as its platform, though the lack of hosting costs, youthful user demographics and easy publishing have to have factored in.
In the context of the global furor over electronic surveillance that began this summer when the Washington Post and Guardian began publishing stories based upon the “NSA Files” leaked by former NSA contractor Edward Snowden, the new tumblr has been met with a rather …skeptical reception online.
Despite its reception, the new site does represent a followthrough on President Obama’s commitment to set up a website to share information with the American people about these programs. While some people in the federal technology sector are hopeful:
…the site won’t be enough, on its own. The considerable challenge that it and the intelligence community faces is the global climate of anger, fear and distrust that have been engendered by a summer of fiery headlines. Despite falling trust in institutions, people still trust the media more than the intelligence community, particularly with respect to its role as a watchdog.
Some three hours after it went online, a series of new documents went online and were tweeted out through the new Twitter account, @IConTheRecord:
The launch of the website came with notable context.
First, as the Associated Press reported, some of the documents released were made public after a lawsuit by the Electronic Frontier Foundation (EFF). In a significant court victory, the EFF succeeded in prompting the release of a 2011 secret court opinion finding NSA surveillance unconstitutional. It’s embedded below, along with a release on DNI.gov linked through the new tumblr.
The opinion showed that the NSA gathered thousands of Americans’ emails before the court struck down the program, causing the agency to recalibrate its practices.
Second, Jennifer Valentino and Siobhan Gorman Carpenter reported at The Wall Street Journal that the National Security Agency can reach 75% of Internet traffic in the United States. Using various programs, the NSA applies algorithms to filter and gather specific information from a dozen locations at major Internet junctions around North America. The NSA defended these programs as both legal and “respectful of Americans’ privacy,” according to Gorman and Valentino: According to NSA spokeswoman Vanee Vines, if American communications are “incidentally collected during NSA’s lawful signals intelligence activities,” the agency follows “minimization procedures that are approved by the U.S. attorney general and designed to protect the privacy of United States persons.”
The story, which added more reporting to confirm what has been published in the Guardian and Washington Post, included a handy FAQ with a welcome section detailed what was “new” in the Journal’s report. The FAQ also has clear, concise summaries of fun questions you might still have about these NSA programs after a summer of headlines, like “What privacy issues does this system raise?” or “Is this legal?”
The NSA subsequently released a statement disputing aspects of the Journal’s reporting, specifically the “the impression” that NSA is sifting through 75% of U.S. Internet communications, which the agency stated is “just not true.” The WSJ has not run a correction, however, standing by its reporting that the NSA possesses the capability to access and filter a majority of communications flowing over the Internet backbone.
Reaction to the disclosures has fallen along pre-existing fault lines: critical lawmakers and privacy groups are rattled, while analysts point to a rate of legal compliance well above 99%, with now-public audits showing most violations of the rules and laws that govern the NSA coming when “roamers” from outside of the U.S.A. traveled to the country.
Thousands of violations a year, however, even if they’re out of more than 240,000,000 made, is still significant, and the extent of surveillance reported and acknowledged clearly has the potential to have a chilling effect on free speech and press freedom, from self-censorship to investigative national security journalism. The debates ahead of the country, now more informed by disclosures, leaks and reporting, will range from increased oversight of programs to legislative proposals to update laws for collection and analysis to calls to significantly curtail or outright dissolve these surveillance programs all together.
Given reports of NSA analysts intentionally abusing their powers, some reforms to the laws that govern surveillance are in order, starting with making relevant jurisprudence public. Secret laws have no place in a democracy.
Setting all of that aside for a moment — it’s fair to say that this debate will continue playing out on national television, the front pages of major newspapers and online outlets and in the halls and boardrooms of power around the country — it’s worth taking a brief look at this new website that President Obama said will deliver more transparency into surveillance programs, along with the NSA’s broader approach to “transparency”. To be blunt, all too often it’s looked like this:
…so heavily redacted that media outlets can create mad libs based upon them.
That’s the sort of thing that leads people to suggest that the NSA has no idea what ‘transparency’ means. Whether that’s a fair criticism or not, the approach taken to disclosing documents as images and PDFs does suggest that the nation’s spy agency has not been following how other federal agencies are approaching releasing government information.
As Matt Stoller highlighted on Twitter, heavily redacted, unsearchable images make it extremely difficult to find or quote information.
Unfortunately, that failing highlights the disconnect between the laudable efforts the Obama administration has made to release open government data from federal agencies and regulators and the sprawling, largely unaccountable national security state aptly described as Top Secret America.”
Along with leak investigations and prosecution of whistleblowers, drones and surveillance programs have been a glaring exception to federal open government efforts, giving ample ammunition to those who criticize or outright mock President Obama’s stated aspiration to be the “most transparent administration in history.” As ProPublica reported this spring, the administration’s open government record has been mixed. Genuine progress on opening up data for services, efforts to leverage new opportunities afforded by technology to enable citizen participation or collaboration, and other goals set out by civil society has been overshadowed with failures on other counts, from the creation of the Affordable Care Act to poor compliance with the Freedom of Information Act and obfuscation of the extend of domestic surveillance.
In that context, here’s some polite suggestions to the folks behind the new ODNI tumblr regarding using the Web to communicate:
- Post all documents as plaintext, not images and PDFs that defy easy digestion, reporting or replication. While the intelligence budget is classified, surely some of those untold billions could be allotted to persons taking time to release information in both human- and machine-readable formats.
- Put up a series of Frequently Asked Questions, like the Wall Street Journal’s. Format them in HTML. Specifically address that reporting and provide evidence of what differs. Posting the joint statement on the WSJ stories as text is a start but doesn’t go far enough.
- Post audio and plaintext transcripts of conference calls and all other press briefings with “senior officials.” Please stop making the latter “on background.” (The transcript of the briefing with NSA director of compliance John DeLong is a promising start, although getting it out of a PDF would be welcome.
- Take questions on Twitter and at questions@nsa.gov or something similar. If people ask about programs, point them to that FAQ or write a new answer. The intelligence community is starting behind here, in terms of trust, but being responsive to the public would be a step in the right direction.
- Link out to media reports that verify statements. After DNI Clapper gave his “least untruthful answer” to Senator Ron Wyden in a Congressional hearing, these “on the record” statements are received with a great deal of skepticism by many Americans. Simply saying something is true or untrue is unlikely to be received as gospel by all.
- Use animated GIFs to communicate with a younger demographic. Actually, scratch that idea.
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