This blog post was written with Andre Muggiati.
This week, our Introduction to Civic Media class discussed freedom of information and transparency. To start with, we not only took our normal public notes but we also decided to be radically transparent by having class in a Google hangout.
Conspiracy, Transparency, Privacy
We began our class by talking about one of the reading assignments, Conspiracy as Governance. Conspiracy as Governance is a 2006 article by Julian Assange where he discusses the political theory behind radical transparency and its effects on authoritarian power structures. Assange starts the article by discussing conspiracy and its actual meaning. Conspiracy is normally dismissed because the term is linked to nefarious cabals in Hollywood films. These sorts of conspiracies often seem impossible and implying their existence is considered crazy. However, it is important to recognize the actual history of conspiracies. The roots of the word conspiracy, which is the first thing in Assange’s article, helps us understand their pervasiveness. Conspiracy comes from the word conspirare where spirare means to breath and con means together. In other words, at its most basic level, conspiracy means to breath together. Conspiracies occur in all all human societies and in all institutions. It does not matter if they are authoritarian or liberal, conspiracies occur.
It is common and sometimes necessary for people to discuss things in secret. These discussions form the basis for conspiracies. In transparency, we need to think broadly about these secret discussions. Sometimes secrets are necessary. Other times they have a negative impact. So which secrets should stay private and which should be revealed?
There is a whole spectrum of thought on which secrets should be revealed. On one end of the spectrum, there are people who advocate for radically open access to all information. The people who hold this strong cyberlibertarian stance think that all information should be free, open, and accessible even if it might hurt someone to reveal it. At the opposite end of the spectrum, there is the extreme authoritarian state that does not believe that the workings of the state should be free or open. Indeed, at this end there is not even a conversation about what should be transparent and what should not.
After discussing Assange’s article, we went around the class and discussed our views on freedom of information and what information, if any, should be kept secret. Information that could endanger someone’s life or freedom was by far the most common type of information mentioned that should be kept secret. This sort of information could include witness or victim protection lists, lists of activists, and the identities of whistleblowers. Another common category of information that should be kept secret was that necessary for national security. Codes to activate nuclear weapons or recent details on troop movements would fall into this category. This exception was particularly stressed in one bill we read about freedom of information in Egypt. National security is a tricky area though because actions in war might not be just or moral and the citizens should know about unjust actions. Security can also be used as a blanket exception to over-classify documents, especially those including upsetting or embarrassing information.
Another distinction was made between transparency and invasion of personal privacy. Many transparency activists are quick to specify that they seek transparency for governments and organizations and privacy for individuals. After all, no one wants their own life broadcast all the time. Personal information that should be kept private includes health records and private conversations. Interestingly, some hackers have a practice called doxxing where they reveal identities of people. Another similar practice is outing where a revealed identity is placed into cultural context and information is added. This information could be that someone is an informant, has done something particularly horrible, etc. Examples of doxxing and outing include when Anonymous doxxed the person who abused Dusty the Cat or the Human Flesh Search. The results of doxxing or outing are often posted on bulletin board message boards or pastebin for easy accessibility
Few leaking websites engage in complete radical transparency. Some do post everything they receive unredacted but most recognize at least some of the potential exceptions to transparency mentioned above.
Next, we discussed some of the debatable reasons people hide information. One of these is keeping trade secrets or other economically sensitive information secret. The Freedom of Information Act has an exception for trade secrets. The recent Massachusetts right to repair initiative, which requires manufacturers to provide owners with vehicle diagnostic and repair information, has an exception for trade secrets too.
The second main contentious area we discussed is if the emails and office memos of government organizations and others should be private. In some states, certain offices are seeking FOIA exemptions for office memos and emails. This is contentious because while emails and memos definitely form some of the primary communication channels for the conspiracies that Assange discusses, many people use their professional emails for private activities. When is it okay to look at someone’s professional email? In one case, two firefighters were accused of harassment and the state went into their work email accounts to find evidence confirming this. Similarly, emails between people at Quantico are being used to investigate Bradley Manning’s treatment while being held at there. This can go even further. Do public figures at some point lose their expectations of privacy as individuals? It was noted that this could be the case with people like General Petraeus and the Princess of Wales. And if so, is this lack of privacy reasonable? The borders are blurry here because while people’s public and private lives intersect, they do not always intersect at the same point or same time. The intersection is fluid and impossible to determine.
What does it mean to provide access to information?
After discussing potential exceptions to transparency laws, we asked what it meant to provide access to information. Does providing access mean making a copy available? Maintaining a server? Publishing it in a paper? Interestingly, “make a copy available” is the phrase used in piracy laws insofar as access to information.
Should this information simply be available on request or revealed proactively? And is a document dump filled with legalese enough? Or should these documents be placed into a narrative (like in the case of the Pentagon Papers) and translated into a more understandable form?
This question can get quite complicated because those in power could make certain information more visible to undermine other organizations or people. Some actors have more power to make things visible and the bigger actors can make the failings of smaller actors visible. This does not justify an exception to providing free access to information but does present a complication of the topic.
Pentagon Papers
The next part of our class was spent discussing the Pentagon Papers. The full text of the Pentagon Papers is available here. The Pentagon Papers are a secret history of the Vietnam War. They include information on the activities of four different U.S. presidential administrations and U.S. strategy in Vietnam (like bombing them in secret and lying). The whistleblower Daniel Ellsberg gave the Pentagon Papers to the New York Times for publication.
One great thing about the Pentagon Papers is that they are a clear story of events. Publishing an encyclopedic history or narrative is different than just publishing documents. Ideally, both documents and the story will be published though as it is possible for people to present the story in a certain way or leave out facts. The existence of the Pentagon Papers as a secret history itself was not bad (although ideally when commissioning a history of a war that will be a public history). In a way, their initial secrecy was good because it meant they included embarrassing information about lies and misdeeds that should have been public.
The case of the Pentagon Papers was crucial to change the situation and promote free information. The Pentagon Papers highlight one of the reasons free access to information is related to war. If people knew what actually happened in war, there would not be any wars (or at least there would be fewer wars). The lies and misdeeds mentioned in the Pentagon Papers demonstrate why governments should share information about the use of force. They are also a case of when national security was used as an excuse to hold back information that should absolutely be released.
This lead to a discussion of exactly what organizations should make information available. The Democrats, Republicans, and Greenpeace could all be considered conspiracy networks. But should all of them release information, ethically? What about legally under free information laws? What is the determining factor? One factor could be if the organization was funded by public money but private companies can still do very bad things. For example, Shell Oil could hire a private security firm to kill indigenous rights activists. What about degree of harm as a determining factor? This could work but some types of harm are debatable and/or difficult to measure. Additionally, does information always have to be released immediately? Sometimes information is time-sensitive and early release will impede legitimate actions of certain organizations. For example, is it okay for troop movements or protest activities to become public record after they occur?
Emi MacLean
In the second part of the class we had a special guest, Emi MacLean, making a presentation over Hangout, for the class. Emi is a lawyer for the Open Society Foundation where she works as a Legal Officer in actions aimed to increase Freedom of Information and Expression. An example of Emi’s work can be seen in the article New York City Criminalizes Protests in the Context of Occupy Wall Street.
Emi said she was excited by what is in the course syllabus and she was trying to make sense of the various tools we were using in class. She thought that the issues we were discussing during the first hour were really interesting. The discussion around radical transparency and massive document dumps, that people mostly know about from WIkileaks, and the increased ability of massive info transfers to the public, begs the question of whether freedom of information access laws and reactive disclosure are outdated. It’s an ironic question since there has only recently been a global consensus on right of access to information, not just freedom of expression. In the last decade there has been international recognition of the issue in legal bodies, where domestic courts and other institutions have all increasingly recognized the right of the public to access information.
Emi then provided a short overview of the history of right to information laws and highlighted some key basic points and fleshed them out with examples.
History, Distribution of Right to Info Laws
Sweden was the first country in the world to have a freedom of information law. The second was in Finland and the U.S. was the third, with the Freedom of Information Act passed in 1966 under Lyndon Johnson. In Emi’s view, when people are in power they are less comfortable releasing information than when they are not in power. Ironically, when Donald Rumsfeld was a representative, he was one of the strongest supporters of the Freedom of Information Act and he denounced the Johnson administration’s tendency to hide and suppress information.
In the last twenty years, the issue has grown significantly in importance and now over eighty countries have right to information laws. The existence of a law may or may not mean that there is significant implementation. The reason for the growth in the last twenty years is partly due to democratic transitions, partly due to advances in information technology and partly due to the recognition of the right to information in international institutions and constitutional protections. We have seen information disclosure policies for international institutions at the same time.
Right to Information Key Principles
The right to information matters for many reasons. It is not just important for the sake of getting information out in the world but also for public engagement and decision making. Information is necessary for the fundamental protection of rights and accountability of public institutions. Access to information is more limited when we talk about private institutions, although laws of increasingly large scope recognize the necessity of access to information of private institutions when they touch government resources. Aside from these big public reasons as to why freedom of information is important, there are also private reasons for it—for medical decision-making, for example.
When we think about right to information laws, we often think of responsive disclosure as the purpose of laws. This is reactive disclosure where you make a request to a government organization and they say if they have the information or not and if they can release it. It also involves a right to appeal and a judicial body. This brings up need for proactive disclosure instead of reactive disclosure. Only having reactive disclosure leads to inequity of information. Laws that recognize proactive disclosure establish the key categories of information that government agencies need to disclose. Information and access to the information should be free or low cost.
Basically, information should be accessible. Accessibility involves both the language used and the way information is provided. It has to be provided in a way a human being can make sense of it and not just as data dump. Unless there is an overriding public interest justification for non-disclosure, information should be subject to disclosure.
There is often debate about how broad or narrow a specific exemption should be. Less frequently is there debate about the categories of exemption. Some of the most basic exemptions that exist within the laws are the exemptions related to privacy, legitimate commercial economic interest, national security, international relations, due process for investigations, information that would harm public health or safety, and, in some laws, provisions for information that would harm deliberative process, development of a policy, and free and frank advice (this is debated and very time limited). Burden of proof rests with the public authority (usually the government agency that withholds information).
Emi then talked about two important principles concerning exceptions for freedom of information: the harm test and public interest test.
A harm test means that the government cannot just say “there’s a national security exemption”. They have to claim, with an explanation, why the information would cause harm. Of course, this is the principle, not necessarily the practice.
A public interest test means that there should be a comparison between the harm that the public authority said disclosure of the information would cause and the importance of the public getting access to it.
Even when there is a reason not to disclose information, partial disclosure can be used. That means that if you have a government document that is 100 pages long and then 5 pages of that are subject to an exemption, the other 95 pages should be disclosed.
In the US, most official documents should be available 10 years after date of creation. 25 years is okay for sensitive documents and there is a potential exemption of up to 50 years for a few of them. Modern laws and policies have a shorter period of time in which exemptions can apply. There is a model law for the US that recommends 12 years maximum in which exemptions can be applied. A model law for African Union countries suggest 10 years maximum. Model laws in Europe also suggest 10 years maximum.
Laws for whistleblowers are often linked to right to information laws and usually ensure that whistleblowers are protected. There should be no sanction on the “good faith” release of information about wrongdoing. These vary significantly in law and in practice.
Information is Power
One of the most recent right to information laws was passed in Nigeria in December of 2011. It took ten years of advocacy to be approved and, according to Emi, it is a strong law. She said that experience shows the power of strong legislation when it’s enforced.
The strongest law, and practice, in the world, exists in India, where there is impressive activism on the ground focused on corruption issues. One example is the SNS Citizens Vigilants Initiative. The organization was founded in 2003 in Delhi to implement right to information law by working with slumdwellers around the issue of ration supplies.
Community members living below the poverty line (BPL) are supposed to go the shops and pick up rations for free or far below market value but few people were able to do this. SNS used right to information to find out if the shops were actually receiving more food than they were distributing. They received the information requested within thirty days. The register stated that the rations were arriving in the stops and there were signatures saying that women were picking up rations but the signatures were forged. Overall, only 5% of the food that the government was delivering to the shops got to the communities. With the information in hand, the communities organized to ask for the correct amount of food. The highlight was a huge public hearing. In the end, they were able to get over 95% of the food they were entitled to.
This story can be seen in this movie we watched from SNS Satark Nagrik Sangathan
Now they are also working on political accountability issues and they have worked with the Poverty Action Lab at MIT. In the Indian elections, the slum dwellers are important constituencies so many promises are made to them but few are upheld. SNS is working with many of these communities to find out about the effectiveness of their representatives. They address questions like:
Do our representatives show up? Do they speak about specific pieces of legislation?
What are the services they are providing the community?
The representatives have some funds and benefits they can provide to the communities and the community members in the slum have fundamental needs like access to drinking water. They found that 70% of the funds were being spent on non-essential services in nicer neighborhoods. The head of the organization said that over the last few years since they started this campaign they were able to ensure that real services were delivered to the communities.
SNS trained leaders and created a community leadership program but they also came to the conclusion that it was critical to be sure that everyone had access to information and not just a leader or a group of leaders.They discovered this because they found out that a few community leaders were being bribed to not tell them that the shops were not giving out the food.
Information is power only if it is the right information. Information that is out in the world is growing dramatically. We have more information than ever before. The Google CEO mentions: “between the birth of the world and 2003, there were five exabytes of information created. We [now] create five exabytes every two days.” But this information has to all be sorted and sifted.
Emi provided an example from Guatemala, where there’s a new right to information law and a strong push for the military to open up its archive.
It was heightened by accident with the disclosure of millions of pages of police records. When the national police were disbanded, 80 million pages of documents were disclosed. These documents required quite a bit of sifting to find the relevant information. In Guatemala, they declassified most of the documents related to the war but virtually none of the documents they found were related to the period of the most egregious abuses (around 1980-85). Emi visited the archives on a password-protected site and was able to find an order related to the decoration of military soldiers but no military operational plans for the war. Important data was missing.
There are definitely issues around data dumps and that’s one of the things that comes up in the WikiLeaks conversations often and is cited a the difference between WikiLeaks dumps and the Pentagon Papers. Some of the disclosures have powerful nuggets that are very helpful but some of it is less relevant or useful.
Other specific key types of information include those that relate to environmental resources like mining licenses. Any process that seeks access to information needs to consider what types of information the government is likely to have, how you will access it, and what you will do with it.
Lack of Information is Power
Perhaps counter-intuitively, accepted secrecy can also be a tool to advance an agenda. Pointing out instances of high-security can prove the importance of revealing the concealed information. For instance, the anti-counterfeiting trade agreement was the subject of campaigns by many advocacy organizations around the world. It was not a complex technical and legal argument that this document that would have dramatic effects on us was being negotiated in secret. Many techies were up in arms because of copyright, but others were concerned for reasons that were less visible, for example the implications for access to essential medicines.
One other example is an analysis of the Bush Administration’s counter-terrorism policies. One study found that one of the most effective measures of accountability with the Bush counterterrrorism policies was FOIA, partly due to failures of other measures of accountability, partly due to cultural aversion to secrecy. There is a great reluctance to accept that the government can do all of this in secret. One of the most important FOIA requests in the last few years was around abusive interrogations and torture. This was filed in 2003 and it was denied in full but through litigation there were 100,000 pages of documents that were released. The documents outline all sorts of abuses in torture, water boarding for instance. Some of them came through the DoD and others the CIA. There were other and still continue to be other right to information requests around counterterrorism policies where there is not disclosure but the lack of disclosure is a strong rallying cry. Some of these polices include NSA policies, secret transportation of prisoners, and the practices around the use of drones in targeted killing.
One of the really important messages in all of this is the power and limitations of the WikiLeaks data dump. Emi does think there have been some important pieces of info released in the massive data dumps but the utility of the dumps is still limited. After all, the end goals of free information and transparency are rarely just access to information but information that can advance human rights, challenge government or corporate decisions and abuse of power, or serve some other purpose for people.
FOIA Requests
The class then prepared to make some FOIA requests. Emi told us more about FOIA and passed around some model FOIA requests.
There is not necessarily a clear form for a FOIA request. Sometimes certain agencies have a particular form they want you to use but not always. One of the requests passed around is a request for information on the crowd control policies of the NYPD. The NYPD is not great with FOIA requests so they thought it might be subject to litigation. Another one of the requests is the torture FOIA request that resulted in the release of 100,000 pages of documents around unlawful interrogation practices. It was filed by the American Civil Liberties Union and the Center for Constitutional Rights. The request provides background information about why they know the information exists and why it should be disclosed. This is not required in FOIA requests but can be useful for litigation. In South African law, there is even a provision that allows access to information from a private company that is instrumental to human rights. This is about a mining company that has questionable policies.
Emi then gave a sample FOIA request for whatever agency keeps birth records- “Please provide numerical information concerning the number of births in the City of Boston in the last ten years, with statistical information about the race and socioeconomic income status of the babies born.”
The first group, Team McFOIA, made two requests. One of these was to Registro Público de la Propiedad or Independent Information Commission in Mexico and asked them to “Please provide the addresses of all properties acquired by the Procuraduria General de Justicia del Distrito Federal since January 2011 until September 2012.” They made a second request to the Department of Justice in the United States asking them to “Please provide any documents related to any US agency, police force, or other body providing support, resources, or training to the Procuraduria General de Justicia del Distrito Federal.” Emi noted that Mexico, alongside India, has the worlds strongest right to information policies so they would likely get a response to their first request.
The second group, Team SavetheSinks, was very interested in what happened to the sink confiscated from Occupy Boston. They wrote a request to the Boston Police Department asking them to “Please provide all records related to any police activities from November 30, 2011 through December 2, 2011 in the area of Dewey Square.” Emi said that the New York Police Department was notoriously bad and releasing information so she hopes the Boston Police Department is better.
The third group, Team FOIAPhones, wanted to learn about data collected on cell phone usage by law enforcement. They wanted to ask local law enforcement agencies to “Please provide an itemized list of the types of data collected on cell phone usage from the past 10 years in the City of Cambridge and how the data is being used.” Emi said that unfortunately the NSA has been blocking requests for information about cell phone monitoring practices. However, it is valuable to raise this kind of request, frame it well, and see what happens. There is an advocacy benefit from making this kind of request and having it denied.
The fourth group, Team Secrets, wanted to ask the Boston Police Department to “Please provide the policies of the Boston Police Department related to the treatment of the media, including citizen journalists, by the police.”
The fifth group was interested in making a map of MIT with areas engaged in classified research blacked out. They wanted to start this map by asking DARPA to “Please provide information about all DARPA grants to MIT over the past 25 years.”