The new cybersecurity bill, CISPA, or HR 3523, is terrible on transparency.

The bill proposes broad new information collection and sharing powers (which many other organizations are covering at length).  Even as the bill proposes those powers, it proposes to limit public oversight of this work.

Read this section:

‘(2) USE AND PROTECTION OF INFORMATION- Cyber threat information shared in accordance with paragraph (1)--

...

‘(i) shall be exempt from disclosure under section 552 of title 5, United States Code;

That part about "section 552" is the Freedom of Information Act, being dismissed wholesale by Congress, for a whole new category of information that they don't understand, that doesn't even exist yet.

Let's make something clear. The Freedom of Information Act is the law that lets the public force the government to determine whether information should be released or not. The Freedom of Information Act doesn't guarantee that information will be released, but just that anyone can request its release, and then have a legal process to try to provide a fair ruling on whether that information should be made public.  Information that shouldn't be shared is already protected by law, through largely uncontroversial exemptions.

The FOIA is, in many ways, the fundamental safeguard for public oversight of government's activities. CISPA dismisses it entirely, for the core activities of the newly proposed powers under the bill.

If this level of disregard for public accountability exists througout the other provisions, then CISPA is a mess. Even if it isn't, creating a whole new FOIA exemption for information that is poorly defined and doesn't even exist yet is irresponsible, and should be opposed.

If you're carelessly creating whole new exemptions to FOIA without hearings on the question, that suggests that the public interest isn't being considered in this legislation. I suspect that (again) government officials have been at the table with industry, and (again) think that the interests of the public at large can be swept aside.

This is wrong. Our public accountability laws are the foundation for democratic governance, and even if government officials are comfortable being given new powers, and even if industry demands it, that doesn't mean it's acceptable.

Follow Openthegovernment.org for more updates on this issue, they first brought it to our attention, and are an absolutely essential safeguard against those who would undermine our open government laws.

Tomorrow is the two year anniversary of the Open Government Directive (OGD), the signature transparency policy issued by the Obama administration on December, 2009.

The transparency issues facing the administration, both before and after the 2009 policy, fall well beyond the control of the OGD, which is, after all, an OMB memo. Nevertheless, the OGD is Obama's single broadest attempt to create transparency across the executive branch, and the most high profile attempt to live up to Obama's campaign rhethoric on transparency.

Over the last two years, Sunlight has become familiar with the inherent limitations of directives and declarations such as the OGD, as we've learned that the difference between an aspiration and a mandate can be a huge gap. Announcements about new transparency policies imagine the best possible impact, while implementation often looks to the minimum requirements.

So to mark the two year anniversary of the OGD, we decided to look at implementation of the Open Government Directive.  Since much of the OGD is written in broad, aspirational language, we decided to review how well agencies have lived up to the commitments they created for themselves in their open government plans.  The OGD required agencies to publish these plans, which were all posted and revised during 2010, and often included deadlines and goals for agencies to release data and tools.

Building on the work that OpentheGovernment.org did reviewing all the agencies' plans (we participated in that review), Sunlight has pulled out all the deadlines from the agencies' plans, and checked to see whether the goals were met.

The results are decidedly mixed.

In some cases, agencies' goals were clearly met.  Many of the datasets planned to be released are now available on data.gov, and the projects and tools that agencies described are underway.

Often, however, agencies have failed to live up to the standards that they set for themselves as a result of the Open Government Directive.

The Commerce Secretary never put up a schedule. The Office of Science and Technology Policy only put up 4 years of budget data. And the Department of Justice apparently decided that none of the data they identified for public release was fit for publication on Data.gov.  Perhaps most egregiously, the Department of Homeland Security rescinded part of their plan to post a schedule for new data to be released, and released a new version of the plan scrubbed of that milestone.

Any broad declaration or aspirational policy is going to face complex challenges, as we've noted. But the agencies applied these goals to themselves. Far too often, agencies are failing to live up to the transparency goals that they themselves created. And this review only the concrete goals that agencies set. Many agencies didn't even go through the hassle of setting detailed deadlines for themselves. The Defense Department won't show up on most of our evaluation, because they hardly set any deadlines at all, and mostly committed (doc file) to talking about openness and doing some untrackable internal reviews, despite their size and obvious public importance.

We've expressed disappointment in the Open Government Directive before, pointing out, for example, that the Open Government Directive requires:

A strategic action plan for transparency that... (3) identifies high value information not yet available and establishes a reasonable timeline for publication online in open formats with specific target dates.

Cass Sunstein (director of OIRA) once called me Oliver Wendell Holmes for insistently pointing out that agencies who said they'd make some future plans failed to live up to this requirement -- that a plan to make plans was an obfuscation, and that if the White House didn't take this seriously, they'd create the wiggle room that would let agencies evade the White House's best intentions. If he meant that I was being too much of a realist, then I stand by that assessment even more firmly now, as most agencies have clearly failed to comply with that passage.

And that cuts to the heart of the OGD. Openness without information is emptiness.  If some agencies won't even share the plans they've made for publishing new information, how far can their commitment to openness possibly go?

The Open Government Directive has caused a lot of good.  And it has also often failed to live up to its promise, the administration's rhetoric, and agencies' own self-imposed compliance plans. We should remember that Presidential rhetoric and bureaucratic commitments are not the same thing as results, especially as even more administration work happens through broad, plan-making executive actions and plans.

Transparency proclamations are valuable, but the path to transparent government runs through a thousand fights over information. The OGD may have moved the default slightly towards openness, but it doesn't win those fights alone.

We'd like to invite you to review our evaluations of agencies' progress (searching through all the agency sites and plans can be tricky), and to help us think about where the OGD should go from here.

This coming Tuesday, President Obama will deliver a speech alongside the UN General Assembly, coinciding with the unveiling of the National Action Plan describing its new open government commitments. This is the result of the Open Government Partnership, which formally debuted in July.

Next week's speech will kick off another round of government announcements about open government policies both here and abroad. Sunlight and other NGOs around the world will be asked to explain the meaning of what our respective heads of state have committed to do.

Ambitious Undertaking

The National Action Plans can have significant value, so long as governments take the opportunity to commit to meaningful reform and learn from each others' strengths. If they don't, the project could waste time and detract from important domestic transparency work that still needs to be addressed. The US should also recognize the transparency issues where they're clearly behind other countries, such as tracking government spending, or contractor misconduct (where Indonesia, Brazil, and the UK have all been leaders).

For Sunlight's part, we've participated in a number of the administration's consultations on their Action Plan, attended meetings with administration officials, and submitted our suggestions for what their plan might do best to address. We've also talked with other groups and worked with OpentheGovernment.org, who assembled a deep roster of important ideas waiting to be implemented.

We're anxious to hear what President Obama discusses in his remarks on Tuesday, and to see the details of the National Action Plan. When Obama first entered office, his administration's Open Government Initiative made significant strides in creating a more open executive branch. But their work has also stalled significantly. The President's dedicated senior transparency staffer was never replaced, and administration officials have started referring to transparency as something they've already achieved, and as something they didn't get enough credit for, instead of a complex, ongoing effort that takes dedicated effort and attention.

Domestic Transparency 

The administration shouldn't be starved for transparency issues they could address. A number important decisions faced by the country have been made in secret, and now a small group of 12 Members of Congress are replacing the work of the rest of the Congress, all while being lobbied and accepting campaign checks that won't be disclosed until their work is done (or not at all, in the case of lobbying contacts).

The financial reporting systems the government uses offer abysmally bad data, and Members of Congress often evade a fake earmark ban by strong-arming agencies into serving their districts, despite an Executive Order designed to prevent it. The government still relies on an expensive, proprietary system for tracking corporate identities, locking them into an unhealthy reliance on a system that limits public tracking of corporate influence and limits corporate accountability. (These and other concerns, and remedies to address them, can be found in the list compiled by OpentheGovernment.org.)

We hope that the Open Government Partnership creates an opportunity to fix these and other related issues. Perhaps some of them will be addressed in President Obama's speech on Tuesday.

Role of NGOs

When we're all asked to evaluate our respective governments' National Action Plans, we'll face a few options in evaluating their work.

If we compare the administration's National Action Plan against what came before it, there's really no contest. Nothing like this has been done before (at least on an international level), and the Open Government Partnership is certain to push governments around the world to enact better policies and strengthen democratic norms around transparency. Countries' best impulses are validated, international relationships are strengthened and public expectations are raised.

If we compare the National Action Plan against the governance issues countries face, and against what the plans could be, then it's a very different evaluation. Based on our experience thus far, the process sometimes looks more about the US advancing foreign policy goals than it is about empowering domestic reform. The vehicle of the National Action Plans may end up looking similar to the Open Government Directive, which similarly caused an enormous amount of good to happen, while also exposing the limitations of such aspirational government declarations.

If the governments involved in the Open Government Partnership are trying to demonstrate what it means to commit to accountability and transparency on the world stage, then NGOs face a similar responsibility. We're tasked with helping to cause change, while also being objective judges of the performance of political actors and their imperfect incentives. As Sunlight approaches next week's announcements, we'll have both roles in mind, as the US helps start a national movement for transparency, and we continue to face serious accountability issues domestically.

Global Integrity's Nathaniel Heller brings up a similar point in his post earlier this week, writing about the tension between data-based reforms and other complex structural issues:

Instead of fetishizing open data portals for the sake of having open data portals, I’d rather see governments incorporating open data as a way to address more fundamental structural challenges around extractives (through maps and budget data), the political process (through real-time disclosure of campaign contributions), or budget priorities (through online publication of budget line-items).

This is a very familiar tension for us at Sunlight, especially as we have a foot firmly planted on both sides of his frame -- advocating for broad, aspirational data policies, while at the same time fighting tooth-and-nail for meaningful reforms for how influence and procedure are disclosed to the public.

In the end, these approaches reflect the dual roles we play as NGOs -- working with governments, while also judging them, and responding to the failures and shortcomings we see, while also building new systems based on the things we envision.

 

Update: This post was edited to reflect that the Open Government Partnership only formally debuted in July 2011.

The House appears to be on the ball in pushing back against the kind of executive branch secrecy that Ellen wrote about here. Just a couple of hours ago they passed a bill, H.R. 6575, the Over-Classification Reduction Act, by voice vote. The stated purpose of the bill is to "increase Governmentwide information sharing and the availability of information to the public by applying standards and practices to reduce improper classification." Now if only the Senate could get on board and pass the numerous anti-secrecy bills passed out of the House.

OpenTheGovernment.org, a coalition of organizations (including Sunlight) aimed at promoting transparency in the federal government, released their fifth annual Secrecy Report Card. The report shows that the federal government is increasingly conducting its business in the dark.  This is especially true of the executive branch lead by an administration whose obsession with secrecy surpasses that of even Richard Nixon. "The current administration continues to refuse to be held accountable to the public," said Patrice McDermott, the coalition's executive director. As the report says:

The administration of President George W. Bush has over its seven and one half years to date exercised unprecedented levels not only of restriction of access to information about federal government's policies and decisions, but also of suppression of discussion of those policies and their underpinnings and sources. It continues to refuse to be held accountable to the public through the oversight responsibilities of Congress. We have been made less secure as a result and the open society on which we pride ourselves has been undermined and will take hard work to repair.

Restoring openness and accountability is key to winning back the trust of the public, Patrice said in a press release. "In recent years, polls have shown that a growing number of Americans believe the federal government is secretive-terrible news for our democracy," she said.

The report cites the following as indicators of growing secrecy:

• The government spent $195 maintaining the secrets already on the books for every one dollar the government spent declassifying documents, a 5 percent increase in one year.
• 18 percent of the requested Department of Defense (DOD) acquisition funding is for classified, or "black," programs. Classified acquisition funding has more than doubled in real terms since FY 1995.
• $114.1 billion of federal contract funding was given out without any competition. On average since 2000, fully and openly competed contracts have dropped by almost 25 percent
• Federal surveillance activity under the jurisdiction of the secretive Foreign Intelligence Surveillance Court has risen for the 9^th consecutive year-more than double the amount in 2000.

As bleak as the report is, it's not totally devoid of good news.  It ends with a survey of actions taken by the 110^th Congress to force more executive branch openness. For instance, Congress passed the OPEN Government Act of 2007, which was meant to help streamline the myriad of problems with the Freedom of Information Act. Another encouraging bill is S. 3077, the Strengthening Transparency and Accountability in Federal Spending Act of 2008, which if it becomes law would bolster the Federal Funding Accountability and Transparency Act of 2006. It was this law that set up USAspending.gov based on OMB Watch's FedSpending.org. Congratulations to Patrice and her team on completing this vitally important report. We at Sunlight are proud to be a member of their coalition.