10 Feb 12 | News and features, Uncategorized
Despite changes in political power and public trust in government and a technological revolution that in many ways changed how people expect to get information, the basic framework of the US Freedom of Information Act (FOIA) has withstood the test of time. The hallmarks of the US FOIA are a presumption of the public’s right to records of government and the ability of requesters to challenge the government’s decision to withhold information. Because the law is based on the premise that people have a right to information about what the government is doing and why, an agency must rely on one of the law’s nine exemptions in order to withhold requested information from the public. The US FOIA’s 9 Exemptions permitting or requiring non-disclosure of records cover:
1) properly classified information; 2) agency management records; 3) information barred from disclosure by another law; 4) trade secrets or other confidential business information; 5) inter- and intra- agency information protected by legal privileges; 6) information that, if disclosed, would invade another individual’s privacy; 7) information compiled for law enforcement; 8) federal government records of banks and other regulated financial institutions; and 9) information about the location of oil and gas wells of private companies.
A requester who believes that an agency has inappropriately used exemptions to withhold information has a statutory right to file an administrative appeal to the agency. If a requester is unsatisfied after the appeals process, or if the government does not meets its statutory obligation to respond to a request in a timely matter, the requester can take the government to court, where the burden is on the government to come forward and justify the withholding of the information.
The law’s structure does suffer some weaknesses. First, while it gives requesters opportunities to question the government’s decision to withhold information, the burden for filing an appeal or a lawsuit falls on the requester. Another problem is that the law’s Exemption 3 allows Congress, by putting language in other statutes, to grant an agency authority to withhold new categories of information without ever actually amending FOIA. The US Congress can, and often does, this by tucking such provisions into large bills. Because the provision does not statutorily amend FOIA, Congressional Committees with jurisdiction over the Act and with expertise in the public’s right to know often do not review the legislation before it is voted on, and sometimes these new authorities are signed into law before anyone even knows they exist. Although there is no perfect count of how many of “other laws” allow the government to withhold information, a report in March 2011 by the Sunshine in Government Initiative, a coalition of media groups, shows the extent of the problem: according to data the group compiled, agencies cited provisions in more than 240 other laws to withhold information over the last decade.
The execution of the US law is another issue confronting requesters. Long delays in response and a lack of transparency about what the government is doing with a request once it is submitted lead to a system that doesn’t work for a lot of people — certainly not journalists and academics who are on deadline and not for people who in the age of Google expect immediate access to information. Although agency backlogs have been reduced in recent years, most people will have to wait for some period of time before an agency even begins processing their requests. Once a FOIA request is in the system, there is no way currently a person can tell how long it may be before he or she gets a response – let alone records.
One reason the US’s FOIA processing system fails to keep up with demand is the lack of continuous effective oversight. The Office of Information Policy (OIP) at the Department of Justice monitors agency compliance with the FOIA, but uses the compliance information it collects to provide agencies with guidance on how to improve its practices, not demand an agency make any changes. In Congress, FOIA competes for attention with a vast number of issues. The Congressional Committees responsible for FOIA oversight also are responsible for other a number of substantive issue areas.
To counter growing backlogs and continued frustration with the FOIA system, Congress proposed the OPEN Government Act of 2007 to make FOIA processes more efficient. The act was championed by members of both parties and was passed by both chambers with wide-spread support, despite a lack of support for the law from the Bush Administration.
Among other changes, the OPEN Government Act borrowed an innovation from several US states and foreign systems: a mediator to handle disputes between requesters and the government. The US version of the mediator, the Office of Government Information Services (OGIS), is charged with helping solve disputes and with suggesting improvements to FOIA. OGIS could reduce costs by, among other things, keeping cases out of the court system and helping make sure Congress and the Administration are more aware of what problems in the FOIA system need immediate attention.
In order to be successful, however, OGIS needs additional authority. Currently OGIS must rely on the goodwill of an agency to enter into mediation and has no power to make an agency turn over records. OGIS also needs better support from the Administration. OGIS’ first round of recommendations have been pending review by the President’s Office of Management and Budget (OMB) for over a year. The Administration needs to move forward to review OGIS’ recommendations, so they can be sent forward to Congress. Each branch then needs to act on the recommendations to improve.
Amy Bennett is the Assistant Director of OpenTheGovernment.org, where she works extensively on the organisation’s coalition partner outreach and on policy issues, including improving public access to government information and increasing openness and accountability of the federal government. Prior to joining the coalition, she earned a Master in Public Policy from the Georgetown Public Policy Institute (GPPI). Amy has previous experience working for a small start-up non-profit, as a lobbyist for government relations firms, and as an aide for Congresswoman Jan Schakowsky (D-IL).
17 Dec 11 | Asia and Pacific
A crowd of 200 royalists staged a protest at the United States Embassy in Bangkok on 16 December, accusing it of interfering in domestic affairs.
Protesters criticised Ambassador Kristie Kennie for her comments on recent lese majeste prosecutions, including that of of Joe Gordon, a Thailand-born US citizen.
“We call on the US embassy and Ambassador Kristie Kenney to apologise to all Thai people for their improper action towards our beloved king,” protest leader Chaiwat Surawichai reportedly said to AFP.
Both US and UN officials had expressed concern about the sentencing of Joe Gordon, also known as Lerpong Wichaikhammat, on 8 December and Amphon Tangnoppakul on 23 November. Gordon, 55, faces two-and-a-half years in prison for translating parts of a banned biography of King Bhumibol Adulyadej and posting them online, while Amphon, 61, was sentenced to 20 years for sending four text messages insulting the monarchy.
Members of royalist group Siam Sammakkhi (United Siam) submitted letters to the United Nations headquarters and the Ambassador urging them not to comment on the lese majeste law. Some of them carried placards which read “Kristie Kenney Shut Up”, “We will protect Article 112 with our lives” and shouted for the Ambassador to “get out”.
At about 6:00pm local time, Kenney posted on her Twitter account that the “protest was peaceful, protestors included respectful conversation with Embassy staff to exchange views. Freedom of expression”. Earlier the US Embassy posted a statement on its website stating “the United States government has the utmost respect for the Thai monarchy, the royal family and Thai culture”, and they “respect Thai laws and do not take sides in Thailand’s internal affairs. We support freedom of expression around the world and consider it a fundamental human right.”
According a report from The Nation, angry commentators had this week lashed out at the Embassy on its Facebook page with postings containing abusive language and images. After its administrator posted a request urging for civility to no avail on 15 December, the messages have been apparently deleted. There was barrage of messages following Kenney’s remarks during a chat with Twitter users last week, including one that read she was “troubled by prosecutions inconsistent with international standard of freedom of expression”.
On 9 December, the UN Office of High Commissioner on Human Rights called for Thailand to amend its lese majeste law. During the Universal Periodic Review in October, countries with monarchs, such as the UK and Norway, urged Thailand to safeguard freedom of expression. Countries without that did not comment during the session included the US.
02 Dec 11 | Uncategorized
The Motion Picture Association announced this week that it would consider changes to the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) to address concerns raised by tech companies such as Google and Yahoo. In a phone briefing this week, Michael O’Leary, senior executive vice president for global policy and external affairs of the Motion Picture Association of America, anticipated that opponents of SOPA and PIPA would remain unhappy with the bill, but that the ultimate goal was to have it passed in some form. He declined to give details of specific changes.
Proponents of the bill are trying to push it through the House of Representatives by 15 December, but are facing strong opposition. Critics of the bills are likely to see any effort at revision or toning down of language as grossly inadequate. If the bill fails to pass during this session, it is likely that next year’s election will make passing legislation even more difficult. Opponents have also gained Rep. Nancy Pelosi’s (D-CA) endorsement against SOPA. She has now publicly said in a statement:
I am fully supportive of the need to pass legislation in this Congress to combat intellectual piracy, specifically dealing with rogue digital theft sites. It is incumbent on the parties that are concerned by the current proposal to offer changes that would effectively deal with piracy. We must work together for an effective solution.
Cynthia Wong of the Center for Democracy and Technology recently expressed concerns that SOPA and PIPA could harm freedom of expression, privacy, and innovation online.
Another problem not addressed in O’Leary’s interview is the issue of DNS filtering, which has been deemed ineffective and technically problematic by experts. Researchers at the Department of Energy’s Sandia National Labs recently wrote a letter to Rep. Zoe Lofgren (D-California), stating that they believe DNS filtering would be ineffective, would negatively impact U.S. cybersecurity efforts and internet use, and would hinder security improvements to DNS. At one point the letter states that “one staff member characterised the proposed DNS filtering mandate as a ‘whack-a-mole’ approach that would only encourage users and offending websites to resort to low cost work-arounds.”
There are also signs of a potential bipartisan alternative to SOPA, proposed by Senators Wyden (D-OR), Cantwell (D-WA), Moran (R-KS), and Warner (D-VA); Reps Chaffetz (R-UT), Campbell (R-CA), Doggett (D-TX), Eshoo (D-CA), Issa (R-CA), and Lofgren (D-CA). The new plan is rumored to take responsibility in this area away from the Attorney General, and place it with the Internet Trade Commission (ITC). Happily, it is rumored that the proposed alternative would not include website blocking by ISPs and DNS providers, nor would search engines or others be required to remove links to such content.
18 Nov 11 | Uncategorized
George Washington University’s Cyber Security Policy and Research Institute recently hosted an event to discuss the constitutionality and legality of cell phone and Internet blackouts. The issue came to a head in the United States this past August when San Francisco’s public transportation system, BART, shut down the system’s underground cell phone network for several hours to prevent protestors from executing plans to disrupt train service.
The event focused on a central question: Are cell phone and Internet blackouts by government agencies unconstitutional and illegal, absent a declared national emergency? In an amicable debate on the subject, Gregory Nojeim from the Center for Democracy and Technology argued in favor of the premise, while Paul Rosenzweig of Red Branch Law and Consulting argued against it. Both sides emphasized that while they agree on other issues, this is a topic that even reasonable minds can disagree about.
Challenges in applying old law to new technology were endemic. The BART station itself was clearly a public forum, but what about the airwaves and networks that formed the “virtual forum” above the platform? What legal precedents apply? How does one ensure that any regulations regarding future cell phone shutdowns will be content-neutral?
The Electronic Frontier Foundation characterised BART’s shutdown of cellular service as an overt assault on freedom of expression, comparing the situation to recent Internet shutdowns in Egypt:
“Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent. But once BART made the service available, cutting it off in order to prevent the organization of a protest constitutes a prior restraint on the free speech rights of every person in the station, whether they’re a protester or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.”
Nojiem agreed with this position, holding up his PDA and declaring “It’s your soapbox and the government is trying to kick it out from under you.” He argued that the protestors posed no imminent safety risk, citing Brandenburg vs. Ohio: which stated:
“….constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
On the contrary, Rosenzweig argued that governments needed to be given wider discretion in controlling cell phone and Internet services. He maintained that preventing government access to shutting down these services is not a “slippery slope to China’s great fire wall” and implored participants to have some faith that the government would in the public’s best interest. BART, he suggested, should have clearly defined, content neutral policies that would allow them to effectively respond to urgent situations.
This argument is supported by the precedent set by Clark, Secretary of the Interior, et al. versus Community Creative Non-Violence:
“Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”
This is an important discourse to continue. The BART shut down highlights that, even in a country with strong protections for freedom of expression, there is a struggle to develop a core understanding of how we measure free speech. Mayor Bloomberg recently struggled to develop consistent rhetoric in addressing Occupy Wall Street movement in New York. “There is no easy answer,” Mr. Bloomberg told the press. “But there is a right answer, and the right answer is allow people to protest, but at the same time enforce public safety, provide public safety and quality-of-life issues, and we will continue to do that.”
