As we approach the end of 2016, it’s disturbing to note the wide variety of ways in which government transparency has languished—even under an administration rhetorically committed to it. With the next administration poised to even further extend executive secrecy, it becomes ever more crucial for the courts and Congress to aggressively seek meaningful answers to questions for which the public deserves an answer.
Below are EFF's top 5 threats to transparency in 2016:
Congress has been complicit by accepting official secrets, and ignoring whistleblowers despite the demonstrable importance of their revelations.
1) War on Whistleblowers
Journalists investigating national security agencies have faced unprecedented threats, alongside government employees and contractors who come forward to reveal fraud, waste, and abuse. Conscientious public servants—people who have risked (and often resigned) their careers in order to do the right thing—have been thanked for their public service with criminal prosecutions for espionage, as if they were subverting the U.S. rather than performing their constitutional function or fulfilling their oaths of office.
Under the Obama administration, more federal employees faced accusation of espionage based on their public interest whistleblowing activities than during the entire preceding history of the U.S. put together.
For instance, military whistleblower Chelsea Manning filed an appeal in May, noting that her 35-year sentence in military prison is “grossly unfair” since “no whistleblower in American history has been sentenced this harshly.” Manning revealed documents about the Iraq and Afghanistan wars to Wikileaks, including a video revealing a U.S. military coverup following the assassination of Reuters journalists and evidence that the Pentagon suppressed accurate data about civilian casualties that were in fact higher than those officially acknowledged.
EFF submitted a brief to the U.S. Army Court of Criminal Appeals, arguing that her conviction for violating the Computer Fraud & Abuse Act was inappropriate since the law was designed to punish people for breaking into computers systems, which Manning never did.
Informed by Manning’s treatment and due process violations pervading her prosecution, NSA whistleblower Edward Snowden continued to seek refuge internationally. Meanwhile, a domestic coalition petitioned the Obama administration to pardon Snowden, given the public interest in his revelations and failure of congressional oversight to expose policymakers to the unconstitutional surveillance programs—including PRISM and upstream collection, which Congress will examine in 2017—that Snowden uncovered.
2) Double Standards for Senior Officials
Meanwhile, Obama administration officials who actually did violate the public trust by lying to investigators have been repeatedly rewarded.
These include David Petraeus, a former CIA Director who lied to FBI investigators about leaks of classified documents to a mistress for use in a book glorifying his record. Petraeus is reportedly under consideration for senior service in the Trump administration.
They also include James Clapper, the Director of National Intelligence who gave false self-serving answers under oath about unconstitutional spying on Americans en masse. Despite the passage of the USA Freedom Act in 2015, the vast majority of programs that Snowden revealed continue to operate today.
Finally, John Brennan, the current CIA Director, admitted to misleading Congress about the CIA conducting an electronic espionage operation targeting the U.S. Senate. Even worse than Brennan’s misrepresentation, or perhaps even the CIA’s hack itself, was the purpose: to obstruct an investigation into criminal violations by CIA personnel of international human rights norms the U.S. was once proud to have pioneered.
Few observers expect the next administration to prove more transparent, or to more conscientiously hold accountable officials who violate the public trust.
3) Congressional Heads in the Sand
Across each of these areas, Congress has been complicit by accepting official secrets, and ignoring whistleblowers despite the demonstrable importance of their revelations. Put simply, Congress has proven more concerned about preserving the appearance of oversight than actually doing its job.
In the 1970s, when public revelations appeared of domestic spying far less extensive than the programs revealed by the Snowden disclosures, Congress took action: it undertook a two-year investigation and created standing bipartisan committees with ongoing oversight responsibilities. Today’s Congress—including those very same committees—have responded to contemporary revelations of vastly broader domestic surveillance with perverse deference to the agencies it oversees.
On surveillance policy, Congress remains in the dark even today, with no answers to questions as basic as, “how many Americans have been monitored by the NSA?” Yet in the next year, members of Congress will be called upon to decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Currently set to expire in December 2017, it is the statute on which intelligence agencies rely to conduct unconstitutional upstream collection and the notorious PRISM program.
EFF has long fought to force meaningful congressional oversight of FISA Section 702.
In January, we joined two dozen civil liberties groups in calling on the House Judiciary Committee to open a “members only” meeting to the public, at least in part. The meeting addressed FISA Section 702, but remained classified, lacking the independence or objectivity enabled by including whistleblowers. It must be followed by open oversight hearings that include the observations of whistleblowers before Congress can reasonably consider re-authorizing the statute's expiring provisions.
In June—informed by congressional failure to mount a long overdue investigation—we and a dozen coalition partners joined forces to call on Congress to let Section 702 expire as scheduled, or alternatively enact reforms to render it constitutionally defensible. That remains our position today.
4) Retaliation Against Civilian Journalists Exposing Police Violence
The public, press, and policymakers have grown increasingly willing to challenge the claims of public safety agencies, driven by civilian journalists who have repeatedly exposed police violence and institutional coverups. Their courageous reporting has forced a mounting national debate over racially discriminatory state violence, an issue that has festered for centuries.
While grassroots journalism has helped restore healthy skepticism of police, it has also inspired a backlash in the form of police suppression around the country. Arrests of civilian journalists who peacefully observe and record police activity were endorsed in two cases by a federal judge in Philadelphia whose judgments we have challenged on appeal before the Third Circuit. The trial decision in those cases perversely imposed a subjective test allowing constitutional protection only after an observer risks violence by openly demonstrating hostility to police.
The Fields and Geraci decisions threaten not only the right of civilians to observe and record police, but also the accountability that those rights promote. Acting both to defend the rights of journalists and these broader principles, EFF filed our amicus brief, and also supported an online petition launched by the International Documentary Association calling on the Justice Department to intervene to restrain local police departments from arresting, detaining, or harassing either professional or lay journalists.
5) Secret International Trade Agreements
Since at least 1995, when the World Trade Organization adopted its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), international trade agreements have overturned national laws aiming to protect freedom of expression to serve the interests of corporate rightsholders. Since then, a steady stream of international agreements further entrenched the power of corporations to impede free expression by restricting access to culture, content, and criticism.
The 2016 presidential campaign season, however, marked a political turning point. Even candidates instrumental in negotiating them jousted for the opportunity to derogate international trade agreements, particularly the Trans-Pacific Partnership (TPP) proposed to establish U.S. interests in trade with Asian countries other than China. The TPP faced enduring criticism for a host of reasons, particularly because it was negotiated in secret primarily by corporate lobbyists, without public participation or even visibility into the draft document. The draft changed arbitrarily and at one point was slated for a fast track approval by Congress.
On the one hand, the Obama administration announced shortly after this November’s election that it would shelve the unpopular TPP. Its decision came after months of opposition by voices from across the political spectrum, which EFF has been proud to support. We developed an infographic to help explain concerns about the proposed agreement, launched online actions in both January and September, and helped promote creative dissent in half a dozen cities through the Rock Against the TPP concert series featuring Rage Against the Machine’s Tom Morello.
On the other hand, future trade agreements could be as opaque as the TPP. Only "an alert and knowledgeable citizenry" can ensure that those agreements meet the same fate. Beyond stopping discrete agreements, Congress could enact proposed reforms to force transparency on the U.S. Trade Representative's office. While some channels to limit international trade agreements must happen at the national level, the resistance to opaque trade agreements like the TPP ultimately unite the globe.
This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.