On its 3rd anniversary, opportunities and challenges for the Open Government Partnership

opgFrance1

In 2010, President Barack Obama spoke to the United Nations General Assembly about open government. “The common thread of progress is the principle that government is accountable to its citizens,” he said, “and the diversity in this room makes clear — no one country has all the answers, but all of us must answer to our own people.”

In all parts of the world, we see the promise of innovation to make government more open and accountable.  And now, we must build on that progress.  And when we gather back here next year, we should bring specific commitments to promote transparency; to fight corruption; to energize civic engagement; to leverage new technologies so that we strengthen the foundations of freedom in our own countries, while living up to the ideals that can light the world.

Open government, said Samantha Power, now the U.S. ambassador to the United Nations, could have a global impact.

In 2011, a historic Open Government Partnership launched in New York City, hailed as a fresh approach to parting the red tape by the Economist. “The partnership is really the first time that there is a multilateral platform to address these issues,” said Maria Otero, former under secretary of state for democracy and global affairs at the United States State Department. “The partnership could have focused on countries come in and present best practices and exchange ideas and then just go home.”

“The partnership is really focused on first having countries participate that have already demonstrated interest in this area and have already put in place a number of specific things and the material laid out, if you will, the minimum standards that are being requested. What the partnership really looks for is to provide a mechanism by which the countries can each develop their own national plans on ways to expand what they’re doing on transparency, accountability, and civic engagement, or to start new initiatives for them. That is really what is very different and important about this partnership, is that it is very action- and results-oriented.”

In 2012, the Open Government Partnership became a player on the world stage as it hosted a global gathering of national leaders and civil society an annual meeting in Brazil, with the responsibilities and challenges that accompany that role, including pushing participants to submit missing action plans and progress reports, not just letters of commitment.

In January 2013, Power hailed the Open Government Partnership (OGP) as President Obama’s signature governance initiative:

It’s not about the abstraction about ‘fighting corruption’ or ‘promoting transparency’ or ‘harnessing innovation’ — it’s about ‘are the kids getting the textbooks they’re supposed to get’ or does transparency provide a window into whether resources are going where they’re supposed to go and, to the degree to which that window exists, are citizens aware and benefiting from the data and that information such that they can hold their governments accountable. And then, does the government care that citizens care that those discrepancies exist?

In May 2013, a seminal event in the evolution of OGP occurred when Russia withdrew from the Open Government Partnership:

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.”

In November 2013, the world may have hit ‘peak open‘ at the OGP annual summit in London, despite the partnerships’ members facing default states of closed.

Swirling underneath the professional glitz of an international summit were strong undercurrents of concern about its impact upon governments reluctant to cede power, reveal corruption or risk embarrassment upon disclosure of simple incompetence. The OGP summit took place at a moment where 21st century technology-fueled optimism has splashed up against the foundations of institutions created in the previous century. While the use of the Internet as a platform for collective action has grown, so too have attendent concerns about privacy and surveillance, in the wake of disclosures by NSA contractor Edward Snowden, where the same technologies that accelerated revolutions across the Middle East and North Africa are being used to capture and track the people advocating for change.

In 2014 the Open Government Partnership has matured and expanded, with France joining earlier in the year and Bosnia and Herzegovina bringing the total number of participating countries to 65 out of about 88 eligible countries worldwide. As OGP turns three, the partnership is celebrating the success of its expansion and looking ahead to its future, with a clearer mission and goals and ambitious four year strategy (PDF). The partnership is finally writing letters to countries that are not living up to their commitments, although the consequences for their continued participation if they do not comply remain to be seen.

The challenges and opportunities ahead for a partnership that provides a platform for civil society to hold government accountable are considerable, given the threats to civil society worldwide and the breathtaking changes brought about through technological innovation. Today, 10 national leaders will speak in New York City to mark OGP’s third anniversary. (I’ll be there to listen and share what I can.)

After the speeches end and the presidents and prime ministers return home, serious questions will remain regarding their willingness to put political capitol behind reforms and take tough stands to ensure that their governments actually open up. Digital government is not open government, just as not all open data supports democratic reforms.  As Mexico prepares to become lead co-chair of OGP, one element that didn’t make it into the challenges listed for the country is the state of press freedom in Mexico. As the Committee to Protect Journalists highlighted, open government is not sustainable without a free press. As long as the murders of journalists go unpunished in Mexico, the commitments and efforts of the Mexican national government will have to be taken in context.

Given this blog’s past stance that as press freedom goes, so too does open government, I’ve signed a petition urging the White House to explicitly support a right to report. Every other country that has committed to open government should do the same. Given OGP’s own challenges around the media and open government (PDF), I would also urge the partnership to make sure that press freedom and freedom of expression occupies a prominent place in its advocacy efforts in the years ahead.

Data journalism and the changing landscape for policy making in the age of networked transparency

This morning, I gave a short talk on data journalism and the changing landscape for policy making in the age of networked transparency at the Woodrow Wilson Center in DC, hosted by the Commons Lab.

Video from the event is online at the Wilson Center website. Unfortunately, I found that I didn’t edit my presentation down enough for my allotted time. I made it to slide 84 of 98 in 20 minutes and had to skip the 14 predictions and recommendations section. While many of the themes I describe in those 14 slides came out during the roundtable question and answer period, they’re worth resharing here, in the presentation I’ve embedded below:

After a false positive, Twitter suspends open government blog for being too social

Twitter’s best practices for tweeting don’t appear to mix well with its rules for tweeting, as I found out last month when the social networking company briefly suspended the Twitter account for this blog. While I was able to quickly get the account back online, the episode raises somr issues regarding how Twitter’s algorithm flags media accounts and some contradictions in the company’s guidance for new users.

When I found that I couldn’t file a help request to Twitter Support to appeal the suspension of @e_pluribusunum_ through that account, I used my main account (@digiphile).

Initially, I thought the suspension was due to spam, similar to the situation David Seaman encountered in 2011.

After I directly contacted Twitter for help, the account went back online later that day:

As I found out days later, however, the suspension was for “sending multiple unsolicited @replies or mentions,” per the statement I have from Twitter Support on @e_pluribusunum_:
“This account was suspended for sending multiple unsolicited @replies or mentions. Twitter monitors the use of these features to make sure they’re not abused. Using either feature to post messages to other users in an unsolicited or egregious manner is considered an abuse of its use, which results in account suspension. You can find more information about @replies and mentions here:https://support.twitter.com/articles/14023-what-are-replies-and-mentions

I have now unsuspended your account. Please note that it may take an hour or so for your follower and following numbers to return to normal. Be sure to review the Twitter Rules, as repeat violations may result in permanent suspension: http://twitter.com/rules”

suspension-notice

The tweets in question, however, are extremely similar to the way I’ve been using Twitter for years, advise others to use Twitter, and that Twitter itself recommends to new users.

Here are the tweets sent the day before the suspension and the three that morning, which I have to assume triggered the suspension.

The seventh tweet, embedded above, had six different @names in it, but it was appropriate: I was attributing the source of the information, referring to an NPR program (The Kojo Nnamdi Show) and naming the 4 guests who were on it. The eighth tweet had three @mentions in it, as I had retweeted a media account that referred to a reporter and added the subject of the story for context.

So: Were there a lot of @mentions? Yep. Were they “unsolicited?” Yep.  That accurately describes tens of thousands of tweets that I’ve sent over the past seven years. In this case, they were far from “abuse.”

That led me to wonder how many people, journalists, government or media companies or nonprofit organizations a Twitter account is allowed to @mention before it’s suspended. Should any of the categories of users I listed now have to actively ask followers for feedback or allow others to talk about them? That doesn’t seem practical nor scalable. Are there different rules for different users, Verified or not? (I’ve asked Twitter for comment on these general questions but have received no answers after two weeks. I will update the post if I do.)

In the meantime, I’ve tried to think them through myself. The “newness” of this account likely tripped Twitter’s automated filter, leading to the suspension. That means that other new users have to think about whether they’re sending “unsolicited replies or mentions” to keep clear.

I found that deeply jarring. I used the @E_Pluribus Unum_ account exactly as I have @digiphile, for over 7 years now, resharing tweets with attributed context and quotes, tweeting about public figures and government officials, tagging mastheads, retweeting select tweets.

That’s more or less how I define being “social” and engaging on the platform. That’s how I thought Twitter defined it, too. Twitter’s own best practices for engaging followers recommends it:

Mention high-profile users
@HillaryClinton included Secretary of State Madeleine Albright username@madeleine in a Tweet welcoming the former Secretary to Twitter. In turn, Albright replied to @HillaryClinton and also mentioned the Kennedy Center (@kencen), where she had recently performed. Including so many mentions of other users makes it more likely that people will find the conversation and join in. ”

If Twitter is suspending new accounts that @mention too many high profile users or reply to them in an “unsolicited” fashion, I can’t help but have serious concerns about Twitter’s future and commitment to being a platform for free expression, government accountability, or hosting civic dialogue.

I do see potential issues with “egregious” @mentions — “@reply spam” has been an issue on Twitter for years — but isn’t that exactly what the block button has been used for, or the new abuse reporting button should be used for? People have been tweeting “#FollowFriday” recommendations for years with many unsolicited @mentions. Are they risking suspension?

Honestly, knocking new accounts offline for being “too social” suggests a tone-deaf algorithm. Ignoring my questions regarding general standards suggests something else. (The company generally refuses to comment on individual accounts.)

Given reports of retention issues and low activity by most users, an overly aggressive approach to filtering new users that are engaging in activity that Twitter itself recommends, particularly media accounts, strikes me as actively self-defeating.

Twitter and its investors should care about the people who never tweet. This experience reminded me that those same parties should care about the people who do tweet and are caught up on algorithmic censorship, followed by vague missives not to talk about other accounts too much.

As I’ve written before, Twitter is not a public utility. It’s a private company with a Terms of Service and Rules it itself sets.  If Twitter’s users don’t like them or lose trust, their option is to stop using the service or complain loudly on other platforms.

In general, Twitter’s record on censorship, Internet freedom and privacy is the best of the big tech companies, as an analysis by the Electronic Frontier Foundation last year highlighted. They’ve gone to bat for their users, from Turkey to Washington. Today, however, I just wish they’d clarify how social those users are allowed to be.

Editor’s Note: The headline of this post has been amended, with “After a false positive” added.

Federal government agencies receive .91 GPA in FOIA compliance from Center for Effective Government

Today, the Center for Effective Government released a scorecard for access to information from the 15 United States federal government agencies that received the most Freedom of Information Act (FOIA) requests, focusing upon an analysis of their performance in 2013.

The results of the report (PDF) for the agencies weren’t pretty: if you computed a grade point average from this open government report card (and I did) the federal government would receive a D for its performance. 7 agencies outright failed, with the State Department receiving the worst grade (37%).

The grades were based upon:

  1. How well agencies processed FOIA requests, including the rate of disclosure, fullness of information provided, and timeliness of the response
  2. How well the agencies established rules of information access, including the effectiveness of agency polices on withholding information and communications with requestors
  3. Creating user-friendly websites, including features that facilitate the flow of information to citizens, associated online services, and up-to-date reading rooms

The report is released at an interesting historic moment for the United States, with Sunshine Week just around the corner. The United States House of Representatives just unanimously passed a FOIA Reform Act that is substantially modeled upon the Obama administration’s proposals for FOIA reforms, advanced as part of the second National Open Government Action Plan. If the Senate takes up that bill and passes it, it would be one of the most important, substantive achievements in institutionalizing open government beyond this administration.

The Citizens for Responsibility and Ethics in Washington have disputed the accuracy of this scorecard, based upon the high rating for the Department of Justice. CREW counsel Anne Weismann:

It is appropriate and fair to recognize agencies that are fulfilling their obligations under the FOIA. But CEG’s latest report does a huge disservice to all requesters by falsely inflating DOJ’s performance, and ignoring the myriad ways in which that agency — a supposed leader on the FOIA front — ignores, if not flouts, its obligations under the statute.

Last Friday, I spoke with Sean Moulton, the director of open government policy at the Center for Effective Government, about the contents of the report and the state of FOIA in the federal government, from the status quo to what needs to be done. Our interview, lightly edited for content and clarity, follows.

What was the methodology behind the report?

Moulton: Our goal was to keep this very quantifiable, very exact, and to try and lay out some specifics. We thought about what the components were necessary for a successful FOIA program. The processing numbers that come out each year are a very rich area for data. They’re extremely important: if you’re not processing quickly and releasing information, you can’t be successful, regardless of other components.

We did think that there are two other areas that are important. First, online services. Let’s face it, the majority of us live online in a big way. It’s a requirement now for agencies to be living there as well. Then, the rules. They’re explained to the agencies and the public, in how they’re going to do things when they get a request. A lot of the agencies have outdated rules. Their current practices may be different, and they may be doing things that the rules don’t say they have to, but without them, they may stop. Consistent rules are essential for consistent long term performance.

A few months back, we released a report that laid out what we felt were best practices for FOIA regulations. We went through a review of dozens of agencies, in terms of their FOIA regulations, and identified key issues, such as communicating with the requester, how you manage confidential business information, how you handle appeals, and how you handle timelines. Then we found inside existing regulations the best ways this was being handled. It really helped us here, when we got to the rules. We used that as our roadmap. We knew agencies were already doing these things, and making that commitment. The main thing we measured under the rules were the items from that best practices report that were common already. If things were universal, we didn’t want to call a best practice, but a normal practice.

Is FOIA compliance better under the Obama administration, more than 4 years after the Open Government Directive?

Moulton: In general, I think FOIA is improving in this administration. Certainly, the administration itself is investing a great deal of energy and resources in trying to make greater improvements in FOIA, but it’s challenging. None of this has penetrated into national security issues.

I think it’s more of a challenge than the administration thought it would be. It’s different from other things, like open data or better websites. The FOIA process has become entrenched. The biggest open government wins were in areas where they were breaking new ground. There wasn’t a culture or way of doing this or problems that were inherited. They were building from the beginning. With FOIA, there was a long history. Some agencies may see FOIA as some sort of burden, and not part of their mission. They may think of it as a distraction from their mission, in fact. When the Department of Transportation puts out information, it usually gets used in the service of their mission. Many agencies haven’t internalized that.

There’s also the issue of backlogs, bureaucracy, lack of technology or technology that doesn’t work that well — but they’re locked into it.

What about redaction issues? Can you be FOIA compliant without actually honoring the intent of the request?

Moulton: We’re very aware of this as well. The data is just not there to evaluate that. We wish it was. The most you get right now is “fully granted” or “partly granted.” That’s incredibly vague. You can redact 99% or 1% and claim it’s partially redacted, either way. We have no indicator and no data on how much is being released. It’s frustrating, because something like that would help us get a better sense on whether agencies would benefit would new policies

We do know that the percentage of full grants has dropped every year, for 12 years, from the Clinton administration all the way through the Bush administration to today. It’s such a gray area. It’s hard to say whether it’s a terrible thing or a modest change.

Has the Obama administration’s focus on open government made any difference?

Moulton: I think it has. There were a couple of agencies that got together on FOIA reform. The EPA led the team, with the U.S. National Archives and the Commerce Department, to build a new FOIA tool. The outward-facing part of the tool enables a user to go to a single spot, request and track it. Other people could come and search FOIA’ed documents. Behind the scenes, federal workers could use the tool to forward requests back and forth. This fits into what the administration has been trying to do, using technology better in government

Another example, again at the EPA, is where they’ve put together a proactive disclosure website. They got a lot of requests, like if there are inquiries about properties, environmental history, like leaks and spills, and set up a site where you could look up real estate. They did this because they went to FOIA requests and see what people wanted. That has cut down their requests to a certain percentage.

Has there been increasing FOIA demand in recent years, affecting compliance?

Moulton: I do think FOIA requests have been increasing. We’ll see what this next year of data shows. We have seen a pretty significant increase, after a significant decrease in the Bush administration. That may be because this administration keeps speaking about open government, which leads to more hopeful requestors. We fully expect that in 2013, there will be more requests than the prior year.

DHS gets the biggest number of all, but that’s not surprising when we look at the size of it. It’s second biggest agency, after Defense, and the biggest domestic facing agency. when you start talking about things like immigration and FEMA, which go deep into communities and people’s lives, in ways that have a lot impact, that makes sense.

What about the Department of Justice’s record?

Moulton: Well, DoJ got the second highest rating, but we know they have a mixed record. There are things you can’t measure and quantify, in terms of culture and attitude. I do know there were concerns about the online portal, in terms of the turf war between agencies. There were concerns about whether the tech was flexible, in terms of meeting all agency needs. If you want to build a government-wide tool, it needs to have real flexibility. The portal changed the dialogue entirely

Is FOIA performance a sufficient metric to analyze any administration’s performance on open government?

Moulton: We should step back further and look at the broader picture, if we’re going to talk about open government. This administration has done things, outside of FOIA, to try to open up records and data. They’ve built better online tools for people to get information. You have to consider all of those things.

Does that include efforts like the Intelligence Community Tumblr?

Moulton: That’s a good example. One thing this administration did early on is to identify social media outlets. We should be going there. We can’t make citizens come to us. We should go to where people are. The administration pushed early on that agencies should be able to use Tumblr and Twitter and Facebook and Flickr and so on.

Is this social media use “propaganda,” as some members of the media have suggested?

Moulton: That’s really hard to decide. I think it can result in that. It has the potential to be misused to sidestep the media, and not have good interaction with the media, which is another important outlet. People get a lot of their information from the media. Government needs to have good relationship.

I don’t think that’s the intention, though, just as under Clinton, when they started setting up websites for the first time. That’s what the Internet is for: sharing information. That’s what social media can be used for, so let’s use what’s there.

California court rules blogger has same First Amendment protections as traditional media

Here’s the summary of the decision, published earlier today:

The panel affirmed in part and reversed in part the district
court’s judgment awarding compensatory damages to a
bankruptcy trustee on a defamation claim against an Internet
blogger.

The panel held that Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (holding that the First Amendment required only a “negligence standard for private defamation actions”), is not limited to cases with institutional media defendants.
The panel further held that the blog post at issue addressed a matter of public concern, and the district court should have instructed the jury that it could not find the blogger liable for defamation unless it found that she acted negligently. The panel held that the bankruptcy trustee did not become a “public official” simply by virtue of court appointment, or by receiving compensation from the court. The panel remanded for a new trial on the blog post at issue, and affirmed the district court’s summary judgment on the other blog posts
that were deemed constitutionally protected opinions.

You can read the whole thing ruling (appropriately enough) or the backstory on the case of the Obsidian Finance Group and defendant Crystal Cox, whom Benjamin Souede and Eugene Volokh represented.

The ruling provides support for the view that the First Amendment applies more broadly to protect speech by all American citizens and acts of journalism, as opposed to solely protecting publications by institutional, credentialed media.

United States releases second Open Government National Action Plan

This morning, the White House released its second action plan (PDF) for improving the state of open government in the United States. The action plan is required for U.S. participation in the Open Government Partnership, an international, multilateral initiative that seeks to push nations to make and keep commitments to open government.

“This second National Action Plan is another opportunity to set concrete and measurable goals for achieving a more transparent, participatory, and collaborative government,” wrote Nick Sinai, United States deputy chief technology officer and Gayle Smith, special assistant to the president and senior director for development and democracy, at the White House blog. “We look forward to working alongside civil society to carry out these commitments and continue identifying new ways to open our government in the future.”

open gov nap 2.0

As I previously reported, the action plan commits to modernizing the Freedom of Information Act, open more government data, improve the management of natural resources and engage citizens in innovation. Additionally, the final plan (a draft was released earlier this fall) includes commitments to join the Global Initiative on Fiscal Transparency  (GIFT), promote participatory budgeting, increase the transparency of spending and foreign assistance, improve the participation of the public in rulemaking and a number of other measures that expand existing commitments.

Initial reactions from open government advocates — many of whom, it must be said, worked to shape the contents of the plan — are strongly positive.

“The United States helped found the Open Government Partnership to challenge other countries to make concrete commitments to make themselves more transparent and accountable to the people,” said Patrice McDermott, executive director of OpenTheGovernment.org, in a statement.

“This plan shows that the US is also serious about challenging itself. While we have been critical of some of this Administration’s decisions, particularly its continued insistence on walling off all information related to national security, this plan begins to break down that wall and advance open government.”

Sean Moulton, director of open government policy at the Center for Effective Government, was similarly positive about the plan:

We are impressed by the scope and detail of the plan, as well as the administration’s commitment to continue to engage and refine those commitments for which detailed goals are not yet available. This broad and ambitious plan tackles important open government issues that we have long been advocating, including: 1) strengthening the Freedom of Information Act (FOIA), 2) improving information about government spending, and 3) continuing to open government data to the public. Properly implemented, these commitments can make government openness work for the public and change how government operates. The Center for Effective Government looks forward to working with the administration to ensure the outlined goals are executed over the next two years.

Sunlight Foundation policy director John Wonderlich balanced good with the bad in the plan:

There are some new and meaningful commitments. The proposed FOIA advisory board and committee could be transformative, and commitments to greater transparency in the extractives industry extend the significant new commitments that began in the US’s last plan.

More disappointing are the commitments around spending transparency, which would build on existing efforts to improve federal spending transparency in Congress and the federal government, but but offer only vague commitments. The National Action Plan also outlines a process to ensure federal agencies treat their data as an asset that should be open to the public, (long a Sunlight priority), but without adding much new detail to a process that is already well along its path.

And money in politics, like in the first National Action Plan, is missing entirely.

The measures that are likely to draw the most attention are those that relate to electronic surveillance and national security, and to whistleblower protections.

On that count, the second U.S. national action plan for open government includes measures to increase the transparency of foreign intelligence surveillance activities (largely mirroring the measures President Obama has already introduced this fall and repackaging the commitments made by the intelligence community) and to “strengthen and expand whistleblower protections for government personnel.” I include both below:

6. Increase Transparency of Foreign Intelligence Surveillance Activities
In June 2013, the President directed the U.S. Intelligence Community to declassify and make public as much information as possible about certain sensitive intelligence collection programs undertaken under the authority of the Foreign Intelligence Surveillance Act (FISA), while being mindful of the need to protect national security. Nearly two thousand pages of documents have since been released, including materials that were provided to Congress in conjunction with its oversight and reauthorization of these authorities. As information is declassified, the U.S. Intelligence Community is posting online materials and other information relevant to FISA, the FISA Court, and oversight and compliance efforts. The Administration has further committed to:

• Share Data on the Use of National Security Legal Authorities. The Administration will release annual public reports on the U.S. Government’s use of certain national security authorities. These reports will include the total number of orders issued during the prior twelve-month period and the number of targets affected by them.

• Review and Declassify Information Regarding Foreign Intelligence Surveillance Programs. The Director of National Intelligence will continue to review and, where appropriate, declassify information related to foreign intelligence surveillance programs.

• Consult with Stakeholders. The Administration will continue to engage with a broad group of stakeholders and seek input from the Privacy and Civil Liberties Oversight Board to ensure the Government appropriately protects privacy and civil liberties while simultaneously safeguarding
national security.

9. Strengthen and Expand Whistleblower Protections for Government Personnel
Employees with the courage to report wrongdoing through appropriate, legally authorized channels are a government’s best defense against waste, fraud, and abuse. Federal law prohibits retaliation against most government employees and contractors who act as whistleblowers, and those protections were strengthened by recent legislation and Executive action. However, some who work for the Government still have diminished statutory protections. The Government must also ensure that Federal employees know their rights. Therefore, the Administration will:

• Mandate Participation in the Office of Special Counsel Whistleblower Certification Program. To ensure that Federal employees understand their whistleblower rights and how to make protected disclosures, the Administration will require covered agencies to complete the U.S. Office of Special Counsel’s program to certify compliance with the Whistleblower Protection Act’s notification requirements.

• Implement the Presidential Directive on Protecting Whistleblowers. The U.S. Government will continue to work to implement the President’s October 2012 Policy Directive on Protecting Whistleblowers with Access to Classified Information (PPD-19), including by ensuring strong, independent due process procedures; awareness of protections; and agency understanding of the protections available to government contractors under the directive.

• Advocate for Legislation to Expand Whistleblower Protections. With the Administration’s support, Congress recently enacted legislation to strengthen whistleblower protections for most Federal Government employees and contractors, but there are still gaps in statutory protections available to certain government employees and contractors. The Administration will continue to work with Congress to enact appropriate legislation to protect these individuals.

• Explore Executive Authority to Expand Whistleblower Protections if Congress Does Not Act. While statutory protections are preferable, the Administration will explore additional options for utilizing Executive authority to further strengthen and expand whistleblower protections if Congress fails to act further.

“This is big news in my mind,” writes Nathaniel Heller, executive director of Global Integrity. “Yes, the commitments to greater disclosure around surveillance activities are largely retread and don’t go nearly far enough. But for these issues to have made their way into a US National Action Plan is an important first step towards broadening the open government agenda to include “new frontiers” or “thorny” issues. That’s a big deal and a win.”

As with so many aspects of government announcements regarding measures to hold themselves more accountable or become more transparent, the most important part of this plan will be not be the words themselves but in how they are interpreted and implemented by this administration and those to follow. To date, after bold rhetoric in 2009, the Obama administration’s record on open government is mixed, with ongoing challenges regarding transparency on Healthcare.gov’s performance. There’s also precious little acknowledgment of concerns about press freedoms in the plan. Heller would also have liked to have seen something on corporate ownership:

The administration remains silent on public registries of beneficial owners of companies,” he writes. “Sigh. David Cameron and the UK government made a pioneering commitment to public registries of who really owns UK companies at the OGP summit in London. The US is now in the awkward position of having to defend keeping this valuable data private to only government regulators and investigators. That’s an increasingly thin reed. There’s certainly opposition to public registries in Congress, but the White House could have at least committed to publicly pushing for public registries. Instead, mum’s the word.

Steven Aftergood expressed some concerns about the administration’s new goals on open government, focusing on his wheelhouse, overclassification and pervasive secrecy. As he noted, the plan also includes a measure to improve declassication:

…a new interagency Classification Review Committee is being established with White House leadership to evaluate proposals for classification reform, and to coordinate their implementation throughout the executive branch.  The creation of such a body was the primary recommendation of the Public Interest Declassification Board last year, and it was strongly endorsed by public interest groups.

Both because of its interagency character and especially due to its White House leadership, the new Committee has the potential to overcome the autonomous classification practices of individual agencies that have contributed to the explosive growth in secrecy.

Positive results are naturally not guaranteed.  The Administration has not embraced an explicit theory of how overclassification occurs, or even how overclassification is to be defined, and therefore it is not yet well-equipped to address the problem.

The new Plan notes that in June of this year President Obama directed the Intelligence Community to declassify and make public “as much information as possible” about intelligence surveillance programs. But in an optimally functioning classification system, the President’s directive would have been redundant and unnecessary; the system would already be declassifying as much information as possible.

Of course, the existing classification system is not functioning optimally. That is the problem.  So either the President needs to issue individualized directives to all agencies on every conceivable classified topic to “declassify as much as possible,” or else the new White House interagency Committee needs to find alternate means to effectively communicate the same imperative.

Wonderlich also expressed a deeper concern about the plan: its lack of ambition, focus upon political power and personal investment or commitment of political capital from President Obama.

Unfortunately, if we imagine what a National Action Plan could be with a committed, engaged President, and senior political staff at the White House who discuss and engage with integrity issues, rather than treating them as political liabilities, we imagine a wholly different world. Incremental working groups and vaguely redundant reporting procedures would be replaced by bold proposals that affect political and state power, and we’d see a White House that talks more about the transparency we’re building than the transparency they use as a shield against critics. That’s clearly not the National Action Plan the White House released today.

All that being said, the fact that these measures are in the plan shows that the Obama administration has heard the criticism of civil society regarding secret surveillance laws, overclassification, and prosecuting whistleblowers and included elements addressing them.

That’s better. Let’s see what they do next.

This post has been updated with reactions from  open government advocates over time.

Coalition presses White House to make secret surveillance laws open to the public

A coalition of organizations that support open government, press freedom and civil liberties have sent a letter to President Barack Obama urging him to make the laws that govern surveillance by the National Security Agency public. The letter, which I’ve published in full below, asks the constitutional law professor living at 1600 Pennsylvania Avenue to support a core principle of democratic governance that hails back (at least as far as) the 12 Tables posted in the Roman Forum: the people should be able to read the laws under which they are governed. The letter was sent to the White House on the eve of the second annual conference of the Open Government Partnership.

October 21, 2013
President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W. Washington, DC 20500
Dear President Obama:
On behalf of citizens who support an open and accountable government, we are writing to urge you to pledge as part of the US’s new round of Open Government Partnership commitments to curb the secret law that enabled the National Security Agency’s surveillance programs to become much broader and more invasive than it was believed the law allowed.
Secret legal interpretations by the Justice Department’s Office of Legal Counsel (OLC) and the Foreign Intelligence Surveillance Court allowed the NSA’s surveillance programs to grow in ways that raise serious concerns about what the government is doing in our name and the extent of violations of American’s privacy and civil liberties. Documents released to the media about the NSA’s programs further raise critical questions about the scope of the US’s activities abroad, leading the President of Brazil and others to question whether the US’s programs breach international law.
This is not the first time that abuses of power have occurred when a government program operates in a bubble of secrecy with only limited oversight: similarly, Americans were outraged to learn that memos authored by the OLC during the Bush Administration approved interrogation methods that many equate to torture. Your release of these memos demonstrated a respect for the public’s right to know how the government interprets the law. Making a concrete commitment to the public’s right to legal interpretations on issues including the intelligence community’s surveillance programs and other controversial policies like targeted killing through the use of drones or other means would make this respect part of the administration’s legacy. While the government has an obligation to protect properly and appropriately classified information, democracy does not thrive when our national security programs and the intelligence community’s actions are shrouded in secrecy. The public must, at the very least, have a shared understanding of the bounds and limits of the laws of our land and be able to have an informed debate about our policies.
During the meeting of the Open Government Partnership in London, you have a unique opportunity to address this issue head-on on an international stage. By committing to give the public access to documents that significantly interpret laws, including – but not limited to—the Department of Justice’s legal interpretations and opinions by the Foreign Intelligence Surveillance Court (FISC), you can both address domestic concerns about our surveillance programs, and begin to rebuild trust with our international partners.
Thank you in advance for your attention to this issue of critical importance to transparent and accountable government. To discuss these issues in greater detail, please contact Patrice McDermott, Executive Director of OpenTheGovernment.org, at pmcdermott@openthegovernment.org or 202-332- 6736.
Sincerely,
American Booksellers Foundation for Free Expression American Civil Liberties Union
American Library Association
American Society of News Editors
Arab American Institute
ARTICLE 19
Bill of Rights Defense Committee
Brechner Center for Freedom of Information
Californians Aware
Center for Democracy and Technology
Center for Effective Government
Center for Media and Democracy
Citizens for Responsibility and Ethics in Washington – CREW The Constitution Project
Council on American-Islamic Relations – CAIR
Electronic Frontier Foundation
Electronic Privacy Information Center – EPIC
Essential Information
Federation of American Scientists
First Amendment Foundation
Government Accountability Project – GAP
Human Right Watch

iSolon.org
James Madison Project
Just Foreign Policy
Liberty Coalition
National Coalition Against Censorship
National Freedom of Information Coalition National Security Archive
No More Guantanamos
OpenTheGovernment.org
PolitiHacks
Project On Government Oversight – POGO
Public Citizen
Public Knowledge
Reporters Committee for Freedom of the Press Reporters Without Borders
Society of Professional Journalists
Sunlight Foundation
Tully Center for Free Speech at Syracuse University Understanding Government
Vermont Coalition for Open Government
Vermont Press Association
Washington Civil Rights Council
Win Without War

Report by Committee to Protect Journalists hammers Obama administration record on transparency

Leading the day in the world of open government is a mammoth report from the Committee to Protect Journalists on the Obama administration and the press, by Leonard Downie Jr., with reporting by Sara Rafsky.

Much of this won’t be new to those who have been tracking secrecy, over-classification, prosecution of whistleblowers and selective disclosure of favorable information using new media and leaks — all core open government issues — but this pulls together those issues into a coherent whole. Abstract:

“U.S. President Barack Obama came into office pledging open government, but he has fallen short of his promise. Journalists and transparency advocates say the White House curbs routine disclosure of information and deploys its own media to evade scrutiny by the press. Aggressive prosecution of leakers of classified information and broad electronic surveillance programs deter government sources from speaking to journalists.”

While I find prosecution of whistleblowers, insider threats and the aggressive surveillance of journalists investigating national security and the surveillance state (meta!) to be particularly problematic, there are also significant issues around FOIA compliance and access to officials.

“The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration,” writes Downie

As press freedom goes, so to does open government and democracy. I’ll be making this point strongly in London in a few weeks.

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

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

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.