Dec 092009

David L. Sobel comments:

The Obama Administration today issued its long-awaited Open Government Directive (OGD), a blueprint for transparency that the President promised on January 21, his first full day in office. The OGD is “intended to direct executive departments and agencies to take specific actions to implement the principles of transparency, participation, and collaboration” the President spoke of as he took office, and it is hopefully the first of many concrete steps that will be taken to alter the entrenched culture of secrecy that pervades the federal government.

The OGD imposes four broad mandates on the federal bureaucracy: 1) publish government information online; 2) improve the quality of government information; 3) create and institutionalize a culture of open government; and 4) create an enabling policy framework for open government. The Directive sets time limits, ranging from 45 to 120 days, for agency action to implement specific benchmarks (this “open government timetable” is summarized in an excellent analysis by Meredith Fuchs of the National Security Archive). Many of the requirements are fairly concrete; for instance, within 60 days, each agency must create an “Open Government Webpage” to serve as the gateway for agency activities related to implementation of the OGD, including the receipt of public comments. There are lots of good ideas in the directive, and the success of this endeavor will be determined by the enthusiasm (or lack thereof) with which it’s received by agency officials and the federal workforce.

If the White House is serious about gaining enthusiastic, government-wide cooperation to make open government a reality, it can lead by example, and EFF can suggest a great place to start…..

Read more on the Electronic Frontier Foundation.

Over on Ars Technica, Matthew Laser writes that:

The White House has told all government agencies to publish at least three sets of “high value data” on the Web within 45 days. We’re not sure what they mean by that, but we’ve got some suggestions, starting with all the FCC’s indecency complaints in downloadable form.


In a tough-talking document, the Obama administration has ordered all government agencies to identify and publish online in an accessible format at least three “high-value data sets” and publish them on, the site dedicated to releasing important federal information. “These must be data sets not previously available online or in a downloadable format,” the White House’s Office of Budget and Management memo stipulates. And the new materials must be up in 45 days.

Nov 102009

From the Electronic Frontier Foundation (EFF):

Can the U.S. government secretly subpoena the IP address of every visitor to a political website? No, but that didn’t stop it from trying.

In a report released today, EFF Senior Staff Attorney Kevin Bankston tells the story of a bogus federal subpoena issued to independent news site, and how the site fought back with EFF’s help. Declan McCullagh at also has the story.

The report describes how, earlier this year, U.S. attorneys issued a federal grand jury subpoena to administrator Kristina Clair demanding “all IP traffic to and from” for a particular date, potentially identifying every person who visited any news story on the Indymedia site. As the report explains, this overbroad demand for internet records not only violated federal privacy law but also violated Clair’s First Amendment rights, by ordering her not to disclose the existence of the subpoena without a U.S. attorney’s permission.

Read more on EFF.

Oct 312009

“The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country. I authorized this significant step following a careful and thorough review process, and I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.

“Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation. We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security. The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

“The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion. A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information. Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.

“As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so. Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country.

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power. Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.

“The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.

“The state secrets privilege also presents challenging questions of executive power. We have attempted to resolve those questions in a manner that ensures robust deliberation and allows for appropriate oversight by the courts and Congress. We believe the action we have taken in this case is the only responsible choice. Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances. As always, we will respect the outcome of that process.”

Source: U.S. DOJ

Oct 232009

Ian MacDougall of Associated Press reports:

It’s the moment nosy Norwegian neighbors have been waiting for — the release of official records showing the annual income and overall wealth of nearly every taxpayer in the Scandinavian country.

In a move that would be unthinkable elsewhere, tax authorities in Norway have issued the “skatteliste,” or “tax list,” for 2008 to the media under a law designed to uphold the country’s tradition of transparency.

Read more in the Chicago Tribune.

Oct 222009

Marcia Hofmann of EFF writes:

Today the Ninth Circuit postponed a court-ordered deadline for the Office of the Director of National Intelligence and the Department of Justice to turn over documents concerning a legislative push to give telecom carriers legal immunity for their participation in the government’s warrantless surveillance program.

The order comes after three unsuccessful attempts by the government to delay disclosure of the documents under the Freedom of Information Act (FOIA) pending the Solicitor General’s decision whether or not to appeal.

In its fourth request for a stay, the government indicated that it will appeal a couple aspects of the district court’s order to release the documents, namely the court’s decision that the agencies must release certain communications exchanged within the Executive Branch and the identities of representatives of telecom carriers within the documents responsive to EFF’s FOIA requests.

Read more on EFF.

Oct 172009

Richard Esguerra of EFF updates us as to developments over the past 48 hours:

This evening (October 15), the Director of National Intelligence and the Department of Justice filed yet another emergency motion with the Ninth Circuit, asking for a stay of the deadline to release telecom immunity lobbying documents, less than 24 hours before the documents are due to be released to the public.

Almost simultaneously, a report appeared on, claiming that the government will be releasing some documents, while fighting in court to hide the remainder. Despite this report, the government’s motion seeks to delay disclosure of all the documents, and no new documents have been released just yet.

For those following this saga, this is deja vu all over again. Last week, when the documents were due to be turned over by Friday, October 9, the government asked the Court of Appeals for a stay, a motion that was denied by the Ninth Circuit in short order. Later that same afternoon, the government asked Federal District Court Judge Jeffrey White for an additional delay, a request that Judge White ultimately denied, giving the government a new deadline of Friday, October 16, by 4 p.m. Pacific time.

This has been a long fight — since 2007, EFF has been working towards the release of these records after media reports revealed an extensive lobbying campaign seeking immunity for telecoms that participated in the government’s unlawful surveillance program. As we’ve said before, we look forward to receiving the documents and making them public so that they can play a much-needed role in the active congressional debate over repealing telecom immunity.

UPDATED October 16, 3:15pm: Friday morning, EFF filed opposition to the government’s motion. The government then filed a reply.

3:50pm: In order to give itself more time to decide whether to grant the requested stay, the Ninth Circuit Court has extended the deadline for disclosure of documents another week, until 5pm PT on Friday October 23.

Read more on EFF, Related Cases: FOIA: Telecom Lobbying Records

To which I say: Enough already! The role of the telecoms and any deals cut is a matter of public concern. This administration, despite its rhetoric on transparency, is following in its predecessors footsteps by trying to keep the public in the dark on vital issues such as the telecoms and torture of detainees. It’s time for the courts to end the secrecy. And shame on Congress for approving legislation that would pre-empt the Freedom of Information Act.

Sep 092009

Steven Aftergood  of FAS writes:

The vast apparatus of government secrecy persisted through the last year with only limited changes in the contours of its multi-billion dollar operations, according to the latest “secrecy report card” published by, a coalition of organizations working for increased transparency.

The new report card (pdf), prepared by Patrice McDermott and Amy Fuller Bennett, compiles all available indicators, from classification activity (which declined somewhat in 2008) to declassification activity (also down) to FOIA processing to assertions of executive privilege, in order to provide an empirical, not simply rhetorical, picture of government secrecy as it exists today.  Ideally, such data can be used to inform efforts to revise and correct secrecy policies.

Read more on FAS.