ODNI declassifies more intelligence documents after White House order, ACLU, EFF suits

I’m still digesting the additional documents the U.S. director of national intelligence released last night. The New York Times’ coverage of the latest documents released notes that they include a 2006 “ruling in which the Foreign Intelligence Surveillance Court first approved a program to systematically track Americans’ emails during the Bush administration.”

The opinion, signed by Judge Colleen Kollar-Kotelly, permitted the NSA to gather email addresses and other forms of Internet communication in bulk  — but not the content of those communications. Law professor Orin Kerr has “major problems” with the FISC opinion:

“By imagining that the statute provides more protection than it does, and by then construing the ambiguity in the statute in the government’s favor, the FISC’s opinion ends up approving a program that Congress did not contemplate using privacy protections Congress did not contemplate either,” he wrote, at his blog. “The resulting opinion endorses a program that appears to be pretty far from the text of the statute.”

Taken in sum, the Guardian holds that these FISA court opinions show that the NSA demonstrated disregard for the privacy protections that are constitutionally afforded to American citizens under the Fourth Amendment.

Transparency, at last?

On the one hand, the intelligence community’s Tumblr blog and Twitter account have been an effective means of distributing and publicizing the document releases it is publishing on odni.gov, its website. That’s a measure of transparency, although the redacted, scanned documents are not “opening the kimono” all the way.

On the other hand, if you only read the ODNI’s press release and posts at that tumblr (which are quite similar,) you wouldn’t know that the documents released are not only pursuant to President Barack Obama directive to DNI Clapper to declassify information relevant to NSA bulk data collection.

aclu icontherecord

As Cyrus Farivar reported for Ars Technica, “the documents, which include annual reports from the Attorney General to Congress, memos, presentations, and training documents, were released in relation to an Electronic Frontier Foundation and American Civil Liberties Union [Freedom of Information Act] lawsuit.”

The overarching context for the release of nearly 2000 documents are the leaks of former NSA contractor Edward Snowden, whose disclosures to The Guardian and Washington Post prompted President Barack Obama’s directive to ODNI.<

So, this is what "open government" looks like in 2013: networked, nuanced and opaque. Official documents are released in response to the reports of whistleblowers,  and then distributed through the government's official channels online and reported, factchecked and through the 4th and 5th Estates.

This dynamic only bound to get more interesting from here on out.

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.

Intelligence community turns to Tumblr and Twitter to provide more transparency on NSA surveillance programs


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  statementsdeclassified documents, congressional testimony by officials, speeches & mediainterviewsfact 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.

Is Wikileaks open government?

Aeschylus wrote nearly 2,500 years ago that in war, “truth is the first casualty.” His words are no doubt known to another wise man, whose strategic “maneuvers within a changing information environment” would not be an utterly foreign concept to the Greeks in the Peloponnesian War. Aeschylus and Thucydides would no doubt wonder at the capacity of the Information Age to spread truth and disinformation alike. In November 2010, it’s clear that legitimate concerns about national security must be balanced with the spirit of open government expressed by the Obama administration.

The issues created between Wikileaks and open government policies are substantial. As Samantha Power made clear in her interview on open government and transparency: “There are two factors that are always brought to bear in discussions in open government, as President Obama has made clear from the day he issued his memorandum. One is privacy, one is security.”

As the State Department made clear in its open letter to Wikileaks, the position of the United States government is that the planned release of thousands of diplomatic cables by that organization today will place military operations, diplomatic relationships and the lives of many individuals at risk.

As this post went live, the Wikileaks website is undergoing a massive distributed denial of service (DDoS) attack, though the organization’s Twitter account is far from silenced. A tweet earlier on Sunday morning noted that “El Pais, Le Monde, Speigel, Guardian & NYT will publish many US embassy cables tonight, even if WikiLeaks goes down.”

In fact, Wikileaks’ newest leak, through the early release of Der Spiegel, had long since leaked onto Twitter by midday. Adrien Chen’s assessment at Gawker? “At least from the German point of view there are no earth-shattering revelations, just a lot of candid talk about world leaders.”

The New York Times offered a similar assessment in its own report on Wikileaks, Cables Shine Light Into Secret Diplomatic Channels: “an unprecedented look at backroom bargaining by embassies around the world, brutally candid views of foreign leaders and frank assessments of nuclear and terrorist threats.”

The Lede is liveblogged reaction to Wikileaks at NYTimes.com, including the statement to Fareed Zakaria by the chairman of the Joint Chiefs of Staff, Admiral Mullen, that “the leak would put the lives of some people at risk.”

http://i.cdn.turner.com/cnn/.element/apps/cvp/3.0/swf/cnn_416x234_embed.swf?context=embed&videoId=world/2010/11/26/gps.zakaria.mullen.wikileaks.cnn

The Lede added some context for that statement:

Despite that dire warning, Robert Gates, the defense secretary, told Congress in October that a Pentagon review “to date has not revealed any sensitive intelligence sources and methods compromised by the disclosure,” of the war logs by WikiLeaks.

The Guardian put today’s release into context, reporting that the embassy cable leaks sparks a global diplomatic crisis. Among other disclosures, the Guardian reported that the cables showed “Arab leaders are privately urging an air strike on Iran and that US officials have been instructed to spy on the UN’s leadership … a major shift in relations between China and North Korea, Pakistan’s growing instability and details of clandestine US efforts to combat al-Qaida in Yemen.” The Guardian’s new interactive of diplomatic cables is one of the best places online to browse the documents.

Is the “radical transparency” that Wikileaks both advocates for – and effectively forces – by posting classified government information “open government?” The war logs from Afghanistan are likely the biggest military intelligence leak ever. At this point in 2010, it’s clear that Wikileaks represents a watershed in the difficult challenge to information control that the Internet represents for every government.

On the one hand, Open Government Directive issued by the Obama administration on December 8, 2009 explicitly rejects releasing information that would threaten national security. Open government expert Steven Aftergood was crystal clear in June on that count: Wikileaks fails the due diligence review.

On the other hand, Wikileaks is making the diplomatic and military record of the U.S. government more open to its citizens and world, albeit using a methodology on its own site that does not appear to allow for the redaction of information that could be damaging to the national security interests of the United States or its allies. “For me Wikileaks is open govt,” tweeted Dominic Campbell. “True [open government] is not determined and controlled by govts, but redistributes power to the people to decide.”

The New York Times editorial board explored some of these tensions in a note to readers on its decision to publish Wikileaks.

The Times believes that the documents serve an important public interest, illuminating the goals, successes, compromises and frustrations of American diplomacy in a way that other accounts cannot match… The Times has taken care to exclude, in its articles and in supplementary material, in print and online, information that would endanger confidential informants or compromise national security. The Times’s redactions were shared with other news organizations and communicated to WikiLeaks, in the hope that they would similarly edit the documents they planned to post online.

…the more important reason to publish these articles is that the cables tell the unvarnished story of how the government makes its biggest decisions, the decisions that cost the country most heavily in lives and money. They shed light on the motivations — and, in some cases, duplicity — of allies on the receiving end of American courtship and foreign aid. They illuminate the diplomacy surrounding two current wars and several countries, like Pakistan and Yemen, where American military involvement is growing. As daunting as it is to publish such material over official objections, it would be presumptuous to conclude that Americans have no right to know what is being done in their name.

It seems that the Times and Guardian decided to make redactions from the diplomatic cables before publication. It’s not clear how that will compare to what will be posted on Wikileaks.org alongside the War Logs and Afghan Diaries.

Open government, radical transparency and the Internet

More transparency from the military, Congress and the White House regarding the progress of wars is important, desirable and perhaps inevitable. Accountability to civilian leadership and the electorate is a bedrock principle in a representative democracy, not least because of the vast amounts of spending that has been outlaid since 9/11 in the shadow government that Dana Priest reported out in Top Secret America in the Washington Post.

Wikileaks and the Internet together add the concept of asymmetric journalism to the modern media lexicon. File asymmetric journalism next to the more traditional accountability journalism that Priest practices or the database journalism of the new media crew online at the Sunlight Foundation and similar organizations are pioneering.

As Tim O’Reilly tweeted, “wikileaks *challenges* [open government government 2.0] philosophy. Challenges are good if we rise to them.” No question about the former point. Governments that invest in the capacity to maneuver in new media environment might well fare better in the information warfare the 21st century battlefield includes.

Open government is a mindset, but goes beyond new media literacy or harnessing new technologies. The fundamental elements of open government, as least as proposed by the architects of that policy in Washington now, do not include releasing diplomatic cables regarding espionage or private assessments of of world leaders. Those priorities or guidelines will not always be followed by the governed, as Wikileaks amply demonstrates.

Increasingly, citizens are turning to the Internet for data, policy and services. Alongside the efforts of government webmasters at .gov websites, citizens will find the rich stew of social media, media conglomerates or mashups that use government and private data. That mix includes sites like Wikileaks, its chosen media partners, the recently launched WLCentral.org or new models for accountability like IPaidABribe.com.

That reality reinforces that fact that information literacy is a paramount concern for citizens in the digital age. As danah boyd has eloquently pointed out, transparency is not enough. The new media environment makes such literacy more essential than ever, particularly in the context of the “first stateless news organization” Jay Rosen has described. There’s a new kind of alliance behind the War Logs, as David Carr wrote in the New York Times.

There’s also a critical reality: in a time of war, some information can and will have to remain classified for years if those fighting them are to have any realistic chances of winning. Asymmetries of information between combatants are, after all, essential to winning maneuvers on the battlefields of the 21st century. Governments appear to be playing catchup given the changed media environment, supercharged by the power of the Internet, broadband and smartphones. This year, we’ve seen a tipping point in the relationship of government, media and techology.

Comparing the Wikileaks War Logs to the Pentagon Papers is inevitable — and not exactly valid, as ProPublica reported. It would be difficult for the military to win battles, much less wars, without control over situational awareness, operational information or effective counterintelligence.

Given the importance of the ENIGMA machine or intercepts of Japanese intel in WWII, or damage caused by subsequent counterintelligence leaks from the FBI and elsewhere, working to limit intelligence leaks that damage ongoing ops will continue to be vitally important to the military for as long as we have one. Rethinking the definitions for secrecy by default will also require hard work. As the disclosures from the most recent release continue to reverberate around the globe, the only certainty is that thousands of State Department and Defense Department workers are going to have an extra headache this winter.