Tag Archives: secrecy

Open Government vs Security – A Question of Balance

Never since Agent Max Smart and his Cone of Silence have Americans been so enthralled with the complex world of secrecy.  Snowden and Mnaning’s disgorging of NSA secrets has spawned a techie battle of the wits and a market flooded with encryption tools and snoop-repellent tricks.  Just this week the HuffPost tells the market impact story.  (http://www.huffingtonpost.com/2013/10/13/nsa-backlash_n_4092804.html) Assuming that the records of these troubled times are made public in time, Snowden and Manning will go down as espionage trendsetters.

If there is good news in this unprecedented attention to the game of secrecy it is that people are paying attention to the power and elusive nature of information, especially information hidden from the public in the name of national security and/or patriotism.  The long-term impact of their disclosures may never be measured.  In the short term, we know that their whistle-blowing                                                 has made a difference.  It has raised dormant questions about the fundamental tension between the need for secrecy and need for transparency —  about what, how and who strikes the balance.

It is no secret that the secrecy ball is in the air.

When Barack Obama came into office access advocates cheered his promise that “we will work together to ensure the public trust and establish a system of transparency, public participation and collaboration.” In 2010 the President signed H.R. 553, The Reducing Over-Classification Act.

Among the requirements of H.R. 553 are these: a) a requirement that the Department of Homeland Security designate a Classified Information Advisory Office to disseminate educational materials and administer training programs to assist state, local, tribal, and private sector entities.”  b) a requirement that the Director of National Intelligence establish guidance to standardize formats for intelligence products; c) annual training for employees with original classification authority, and d)  requirement that federal Inspectors General  assess the effectiveness of agency classification policies.

By Sunshine Week 2012 the federal Information Security Oversight Office could report a sharp decline in expenditures for secrecy.  Stil,l veteran open government advocate Steven Aftergood was cautious, advising that “many classification decisions are still excluded from critical security and instances of over-classification are not hard to find.”

And then Manning and Snowden threw open Pandora’s Box of Secrets!

Alerted to issues, the public is demanding to know more about the balance between open government vs. security.  Last month the Justice Department’s inspector general issued the results of a study to determine if the government’s tendency to over-classify documents actually hurts the very national security it purports to protect.

The DOJ inspector general concluded that the study “did not find indications of widespread misclassification.”  Still, the report “did identify deficiencies with the implementation of the Department of Justice’s classification program, including persistent misunderstanding and lack of knowledge of certain classification processes by officials within Justice Department components.”

Open government advocates find some hope in the report.  For starts, they hope that the report may help to alleviate the burden of backlogged FOIA requests.  In spite of increased staff the FOIA backlog increased in one year (2010-2011) from 70,000 to 83,000.

A closer look at the internal bureaucratic processes that hinder or facilitate the flow of information by and about the government points out some basic facts:  The mechanisms are not mechanical at all, but human.  Humans not only set the policy, they interpret the policy and implement the process; they make the decisions about classification, interpret the rules, handle the requests, and deal with the public.  Right now they are probably furloughed, even as the influx of FOIA requests mounts.

At the same time, information itself is at its core a human resource, produced, recorded, organized and made accessible by humans for use by humans.

Possibly that helps to explain why determining information policy is so intriguing and yet so troublesome.

Note:  Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists, provides a thoughtful and timely overview of the issue of government secrecy in his paper  “An Inquiry into the Dynamic of Government Secrecy” (https://www.fas.org/sgp/eprint/dynamics.pdf)

 

 

 

 

 

 

Wikileaks FAQs

Open the Government plays David in the federal David vs Goliath world of information access.  Once again the dynamo organization has risen to meet head on the digital dilemma de jour.  This time it’s Wikileaks and the flood those leaks unleash.  The FAQs about the Wikileaks controversy are totally on target.  With thanks we share the gift of information from Open the Government. Following is a memo received today:

OpenTheGovernment.org has worked with our partners to answer some of the questions transparency advocates are frequently asked about the WikiLeaks controversy, and have set up a site (https://sites.google.com/site/wikileaksandtransparency/ ) with some useful resources on the issue. While the answers below were developed with input and advice from a broad range of our partners, they do not represent and are not intended to be representative of a consensus view among our coalition partners, or the wider openness community. (View the FAQ’s online here: http://www.openthegovernment.org/article/articleview/458/)

WikiLeaks Frequently Asked Questions

Are the people working for WikiLeaks journalists?
As neither the Espionage Act, nor the First Amendment to the U.S. Constitution differentiates between journalists and any other person, the question of who does and does not qualify as a journalist is irrelevant to issues at the heart of the WikiLeaks controversy.

Could Bradley Manning, or other accused leakers, and WikiLeaks be prosecuted?
There is a clear distinction between Bradley Manning and WikiLeaks under the law. If the governments allegations are true, Spc. Bradley Manning and/or other government employees disclosed classified information to unauthorized persons. As a government official Spc. Manning had an obligation to protect both the classified information and sensitive intelligence sources, and the personal privacy of other third parties mentioned in government documents.

The government interprets the Espionage Act to grant wide discretion in prosecuting leaks of classified information. Whether or not it is fair and appropriate to prosecute Pfc. Manning for choosing to violate his duty as a government employee to protect properly classified information is an open question that ultimately rests on whether one thinks the public good in exposing the information outweighs the potential harm to national security and the violation of the rights of innocent third parties. As more facts regarding the matter are made public as the prosecution proceeds, this debate will continue.

The case against WikiLeaks for violation of the Espionage Act is a much tougher sale for the government to make. As noted in a report by the Congressional Research Service (CRS), Criminal Prohibitions on the Publication of Classified Defense Information, Congress’ research arm is “aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.” The Department of Justice would be wading into untested waters to bring a case which could have disastrous ramifications. Prosecuting WikiLeaks would undoubtedly harm on our first amendment protections and have a chilling effect on the press. Further, were the prosecution to fail, we could expect Congress to revive old proposed amendments to the law that would likewise curb free speech and press rights, hurt information sharing and disclosure, and encourage more classification of information.

We hope that Congress will resist the impulse to move quickly and speak loudly in favor of a cautious, measured approach. On December 16, 2010, the House Judiciary Committee held a hearing on “The Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.” The overwhelming sentiment of the seven witnesses testifying at that hearing was that Congress should focus its efforts on preventing leaks from within, not punishing those who receive or even publish such information. The Committee, and others with jurisdiction, should heed that advice and, in fact, collect more information before proceeding. The initial attempt to address the Wikileaks, the SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act introduced on December 2, 2010, in the Senate as S 4004, contains several clearly unconstitutional provisions.

What should be done to better protect our national security?
The best way to protect against disclosure of our national security secrets is to deal with the supply side of the equation: improving security on our information systems and reducing over-classification. The government has an obligation to protect classified information, and the fact Pfc. Manning or someone else was supposedly able to walk out of a secure area with a trove of classified national security information on a CD is unconscionable. The Administration should endeavor to ensure that any security measures implemented are platform, issue and personnel neutral to the greatest extent possible. In other words, there should be no possibility for selective application for political purposes. If information or materials require the highest security, that security must apply in all situations.

The Administration should also push agencies to complete the Fundamental Classification Guidance Review, a procedure required by President Obama’s Executive Order on Classified National Security Information (EO 13526). Every agency that classifies information is supposed to seek out, identify and remove classification requirements that are no longer valid. The disclosures on WikiLeaks prove that much of what the government says is classified is not much of a secret at all. This overclassified information clogs our systems and prevents us from protecting the real secrets nearly as well as we should.

What is the relationship between the WikiLeaks case and the pending Whistleblower Protection Act, S. 372?
S. 372 does not under any circumstances authorize public disclosures of classified information, or disclosures of sensitive sources and methods information to any unauthorized persons or entities. Indeed, S. 372 is an anti-leaks measure; absent it, media outlets and WikiLeaks will be the safest alternative for those who want to challenge fraud, waste and abuse without engaging in professional suicide. Congress should pass the Whistleblower Protection Enhancement Act to provide safe and credible channels for disclosing classified information, when none currently exists.

For more information on S. 372, see POGO’s fact sheet.

There is wide disagreement in the openness community as to whether or not Spc. Manning is a whistleblower: while much of the information he allegedly disclosed clearly benefits the public interest by exposing unnecessary official secrecy and potentially informing public debate about our government’s policies and actions, it is also argued that the sheer volume of the materials recklessly puts innocent parties at risk.

 

 

 

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