Back in October, we pointed out how the US delegation to the ITU WCIT (World Conference on International Telecommunications) was pushing for much more openness and transparency for the notoriously closed and secretive process that could impact internet governance. That was certainly refreshing to see. But it also stood in stark contrast to the same US government's massively secretive and opaque process to the Trans-Pacific Parntership agreement -- which could have just as much, if not more, of an impact on internet governance issues.

With negotiations on both issues happening simultaneously (WCIT in Dubai and TPP negotiations in New Zealand) it seems quite crazy to see the US speaking out vehemently in favor of greater openness and transparency in Dubai, while actively trying to prevent similar transparency in Auckland. Here's the State Department on WCIT:

On the eve of the World Conference on International Telecommunications (WCIT), we believe that it is the right time to reaffirm the U.S. Government's commitment to the multistakeholder model as the appropriate process for addressing Internet policy and governance issues. The multistakeholder model has enabled the Internet to flourish. It has promoted freedom of expression, both online and off. It has ensured the Internet is a robust, open platform for innovation, investment, economic growth and the creation of wealth throughout the world, including in developing countries.

[....] The Internet's decentralized, multistakeholder processes enable us all to benefit from the engagement of all interested parties. By encouraging the participation of industry, civil society, technical and academic experts, and governments from around the globe, multistakeholder processes result in broader and more creative problem solving. This is essential when dealing with the Internet, which thrives through the cooperation of many different parties.

The global community has many serious topics to discuss with respect to the Internet. Collectively, we need to ensure that these matters are taken up in suitable multistakeholder venues so that these discussions are well informed by the voices of all interested parties.

Our commitment to the multistakeholder model is based on the fact that transparency, inclusion and participation are the 21st century standards governing discussions related to modern communications.

Yet, over in New Zealand, US officials, as well as negotiatiors from others countries, are taking the opposite view. They're doubling down on secrecy, not transparency. They are not using a "multistakeholder" model at all, but rather locking out civil society and public interest groups. They've ignored or limited the ability of the innovation industry to have any say in the proceedings at all, and (most ridiculously) they're enforcing a secrecy policy many times worse than what we see at the ITU with WCIT. Many of the documents from WCIT have leaked out, while precautions mainly driven by the US government have, to date, limited the leaks from TPP negotiations.

It's really quite incredible that the same government can make those claims about openness, transparency and the importance of a multistakeholder process on the one hand, while going in the opposite direction on basically the same exact issue at the very same time for an event held elsewhere. The whole thing stinks of hypocrisy, which could easily be solved by opening up the TPP process, revealing the negotiating documents for public comment, and allowing the public into the process. After all, in the words of the US government:

We have and will continue to advocate for an Internet that is not dominated by any one player or group of players, and one that is free from bureaucratic layers that cannot keep up with the pace of change. We will work with everyone to ensure that we have a global Internet that allows all voices to be heard.

If only the US government would listen to that important message.

The EU Parliament recently joined the US government in speaking out against the ITU's upcoming WCIT event, which we've been discussing. This is where the ITU -- an ancient organization designed to deal with telegraphs, and whose relevance today has been widely questioned -- is seeking to take over certain aspects of internet governance, well outside its mandate. Certain countries -- Russia and China in particular -- and certain large telcos (including many EU ones) are looking at this as a way to advance very specific interests, either for increased control and censorship over the internet, or in forcing successful internet companies to fork over money to telcos who have failed to innovate. Thankfully, the EU Parliament has now spoken up about its concerns, noting a number of key points (these are just the first half, but they give you an idea):

1. Calls on the Council and the Commission to ensure that any changes to the International Telecommunication Regulations are compatible with the EU acquis and further the Union’s objective of, and interest in, advancing the internet as a truly public place, where human rights and fundamental freedoms, particularly freedom of expression and assembly, are respected and the observance of free market principles, net neutrality and entrepreneurship are ensured;

2. Regrets the lack of transparency and inclusiveness surrounding the negotiations for WCIT-12, given that the outcomes of this meeting could substantially affect the public interest;

3. Believes that the ITU, or any other single, centralised international institution, is not the appropriate body to assert regulatory authority over either internet governance or internet traffic flows;

4. Stresses that some of the ITR reform proposals would negatively impact the internet, its architecture, operations, content and security, business relations and governance, as well as the free flow of information online;

5. Believes that, as a consequence of some of the proposals presented, the ITU itself could become the ruling power over aspects of the internet, which could end the present bottom-up, multi-stakeholder model; expresses concern that, if adopted, these proposals may seriously affect the development of, and access to, online services for end users, as well as the digital economy as a whole; believes that internet governance and related regulatory issues should continue to be defined at a comprehensive and multi-stakeholder level;

6. Is concerned that the ITU reform proposals include the establishment of new profit mechanisms that could seriously threaten the open and competitive nature of the internet, driving up prices, hampering innovation and limiting access; recalls that the internet should remain free and open;

The ITU has taken to its blog to hit back, claiming that it is deeply disappointed in the resolution. No surprise there. It tries to hit back on some of the points, but fails wildly. Take, for example, its response to the transparency issue:

However, it is important to point out that WCIT is inclusive of 193 national delegations which are participating in WCIT-12. Private sector companies and civil society organizations have also registered to attend WCIT-12 in large numbers.

Everyone attending WCIT-12 is free to lobby for their specific positions.

Added to this, in the run-up to the conference, the ITU Secretariat created a platform to allow any individual, civil society player or company to make its views known.

The very thorough and inclusive preparatory process leading up to the WCIT-12 has been completely transparent. Every European parliamentarian could have obtained all the documents from their own government, or from the European Commission.

At ITU, transparency is achieved at the national level, through national consultations in national languages. Surely this process is far more inclusive than just posting an English language text on a web page?

Note the key false equivalency here: that transparency means that you can have your voice heard (if, that is, you're willing to sign up to fly to Dubai and take part as a delegate). First of all, being heard is not transparency. Transparency is about sharing information in the other direction. It's about making the discussions and details public so everyone knows what's going on. Hearing what people are saying is listening and it's important -- but it's not transparency.

Second, the fact that parliamentarians could obtain the documents is not transparency either. It does not involve the public.

It's this kind of misleading rhetoric that makes people so concerned about the ITU. The fact that it pretends transparency is something other than it is seems like a real problem.

Google's latest transparency report is out and the notable bit of info is that governments continue to increase how often they're seeking info about users. The increase there is a steady growth which is immensely worrisome. There's also an equally troubling increase in the attempts to censor content via Google, though in that case, it was relatively flat until the first half of this year when it shot way, way up.

Digging deeper into the data, it's not surprising to see the US top the list (by a wide margin) of governments seeking info from Google. Frankly nothing on that list is all that surprising. Looking at their annotations on takedown requests, it once again seems to show the incredibly thin-skinned nature of those in power, who then seek to abuse that power to censor information that makes them look bad. Just a couple of examples:

We received a request from the office of a local mayor to remove five blogs for criticizing the mayor. We did not remove content in response to this request.

We received a request from legal representatives of a member of the executive branch to remove 10 YouTube videos for alleged defamation. We did not remove content in response to this request.

There are a lot more like that, mostly from countries that have less respect for free speech than the US. However, some of the requests in the US are equally troubling:

We received five requests and one court order to remove seven YouTube videos for criticizing local and state government agencies, law enforcement or public officials. We did not remove content in response to these requests.

This one is concerning. What court ordered a takedown of a YouTube video criticizing local government officials? That seems like it should be public info.

Google also admits to taking down info pursuant to a court order concerning defamatory content, though at least some courts have argued that, thanks to Section 230, sites do not have to remove content, even if it's judged to be defamatory. Still, it's reasonable for Google to decide, as a matter of policy, that if a court finds content defamatory, and a proper court order is issued, that it will remove that content.

Interesting information, if still troubling, given the general trends.

For a while now, we have been highlighting many stories about the successful crowdfunding of movies, music, books and games. This new source of funding for creative content has been an exciting time for indie artists and those wanting to break free of traditional funding models. However, this funding model is not without its risks, something that Kickstarter has recognized with a change in the way projects are presented.

So what exactly happens when a successfully funded project fails to meet its completion goals? Well, reader Marcus Wellby sent along a story about one successfully funded game project that has hit some major roadblocks to completion. Haunts: The Manse Macabre, although successfully funded, has run out of money and programmers and was in danger of never being completed.

Haunts sought $25,000 (£15,590) from Kickstarter but the project proved popular and meant the game's developers got $28,739 (£17,895) to fund completion of the game. Prior to the funding appeal, Haunts creator Mob Rules Games had spent about $42,500 getting the basics of the title completed.

The end result was supposed to be a haunted house horror game in which players could take on the role of the house's inhabitants or intruders investigating what lived within it.

Now Mob Rules Games boss Rick Dakan has revealed that the game's development has prematurely halted.

"The principal cause for our dire condition is that there are no longer any programmers working on the game," said Mr Dakan in a blogpost updating backers.

You can see Rick's full explanation of the problems the game has had over at Kickstarter. With all the cash and programming problems, Rick felt so bad about letting down the backers that he was willing to refund, out of his own pocket, anyone who wanted their money back. While most companies will silently kill off projects that do not meet expectations, his forthcoming post about the state of affairs actually had a positive effect on the project's future.

The next day, Rick posted the following update.

I've had a lot of interested emails from programmers offering their help. Thank you all very much! There's a lot to sift through and I'm not sure what the best way to proceed will be, but I am very encouraged by these offers and want to try and figure out the best way to take advantage of this opportunity. I've reached out to a good friend of mine who's an expert in collaborative open source development, and he and I will talk soon. I also want to discuss this exciting development with Blue Mammoth and get their take on it.

By being open about the problems he was having completing the game, the community came in to offer their help. Granted, this is a unique circumstance, but having such a dedicated fan base is wonderful. Had he let the game fester with no updates for longer than he had, he might have been met with more hostility than encouragement. That would have made it far more difficult to find any kind of solution.

Finally, in the most recent update, Rick announced that after considering the situation and the best way to move forward, he will be open sourcing the game with over thirty programmers offering their help to complete it.

We're going to finish developing Haunts: The Manse Macabre as an Open Source project. The source code has been open from the beginning, but now we're going to fully embrace open development model and making the game entirely open source. We've had about thirty programmers from a variety of backgrounds, including many proficient in Go, who have stepped forward and offered to help finish the game. We're still in the process of setting up the infrastructure for issue tracking, source control, documentation wikis, and other tools necessary before we can begin in earnest, but we hope to have that all up and running within the next week or two.

While this story is far from over, it is a great lesson in the risks of any project whether crowdfunded or not. Projects can fail, they can have problems, they can be shuttered. The key takeaways from this story, however, are (1) being transparent (rather than hiding) with supporters can do wonders and (2) being flexible and willing to change course can help. Rick notes that there's been plenty of press coverage about the supposed "failure," but much less about what happened after...

We've gotten a lot of press coverage, most of it in the general vein of, "Look, see, Kickstarter projects can go bad, so be careful!" I think that's a fair and useful point to make. But we're committed to being the follow-up story. You know, the underdog who comes back from the brink of collapse and proves a resounding success!

Yes, this is a story that highlights the risk in any kind of crowdfunding endeavor. Backers may be out the money they put in with nothing to show for it. However, if those who run these projects will be open and honest through the whole process, stumbles and falls included, even if the project never comes to fruition, then the potential that such a failure will damage their reputation and future projects can be mitigated. And heck, maybe you will be struck with a miracle and your project will come back to life.

As was noted here back in September, several news organizations have begun a coordinated push to have the Bradley Manning court-martial "opened up" to allow the general public to access motions, briefs and rulings. The military refused (of course), inviting the press to entertain itself with near-useless FOIA requests, a clunky form of "openness" prone to inexplicable (and endless) delays when not being ignored completely.

Fortunately, the military appeals court has taken this plea for openness more seriously than the government itself, which seems to treat it as an unwelcome nuisance at best. On Wednesday, the Court of Appeals of the Armed Forces (CAAF) began looking into allegations that the government has violated First and Sixth Amendment rights in regards to free press and public trials by making all filings and transcripts inaccessible.

The CAAF had little patience with the government's insistent obfuscation but seemed unsure as to whether it could actually force a change:

Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked.

Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.

Other judges had the question in mind as well.

Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.

"Widely shared" is correct. In all, 31 news outlets signed off on an amicus brief filed by the Reporters Committee for Freedom of the Press, and several other entities have petitioned for access. Some discussion ensued as to whether or not a sort of PACER access could be implemented, and Kadilal proposed several possibilities, including paid stenographers, online audio streams of the proceedings, or having redacted documents posted to the court's website.

Chief Judge James Baker offered somewhat of a compromise in order to move the proceedings along:

Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.

At this point, the panel turned on government lawyer Capt. Chad Fisher, pointedly asking why the executive branch felt it necessary to force this issue to be discussed rather than simply open the trial up for public access:

"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.

In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"

A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.

The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.

While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.

Basically, Fisher's answer boils down to: if the general public wants this information, it's going to have to work for whatever scraps the executive branch deems it worthy of. Nominally a tool of transparency, the FOIA has been twisted into a barely functioning layer of bureaucracy that most administrative agencies seem to treat as completely optional. Whatever doesn't get delayed indefinitely or redacted into uselessness is simply denied under any number of executive privileges or for bogus "national security" reasons. One of the CAAF judges pointed out this irony, stating that the FOIA statute has done more to close off access to the Manning case, than to open it further.

Fisher's next statement displayed the sort of hubris inherent in agencies that routinely disregard the rights of others:

Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.

Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.

This answers Judge Ryan's question from earlier: why make a Constitutional case out of this? The answer: because certain agencies will never do ANYTHING that results in transparency or openness until forced to, and even then, their compliance will be marked by endless delays, appeals and attrition.

Judge Baker pressed the point by pointing out that the government's representation was willing to avail itself of all available rights and privileges, but was unwilling to extend those courtesies to others.

Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.

"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.

While it's refreshing to see a panel of judges as sick of governmental hubris and obfuscation as much of the public is, this matter is far from settled. The government will likely continue to hold out as long as possible before granting access to Manning's court-martial.

In order to expedite the proceedings, Kadilal has suggested that the court find that "court-martials have a First Amendment obligation to public access," passing along the implementation logistics to the lower court. However, if the CAAF finds the decision is out of its jurisdiction, Kadilal said he plans to seek "emergency relief in a federal court." Unfortunately, forcing the issue in this fashion would require Manning's defense to file a stay of trial, resulting in further delays for the defendant who has already spent over 900 days in pre-trial incarceration.

While demands for openness currently remain unmet, it's good to see another set of judges irritated with the standard M.O. of many government agencies: closed, secretive and unwilling to change unless forced.

We've been covering two big stories lately: the ongoing negotiations over the TPP agreement (Trans Pacific Partnership) as well the upcoming fight to change key internet governance issues via the UN's ITU (International Telecommunications Union) as part of WCIT (the World Conference on International Telecommunications). Of course, there's an interesting contrast about these two discussions. Both have been hit with accusations of government bureaucrats keeping things way, way too secret. The ITU has been notoriously secret, despite claims of opening up (which generally involve releasing redacted versions of documents which have already been widely leaked in un-redacted form much earlier). Then we have the USTR, claiming unprecedented transparency, even as the USTR seems to think that "transparency" means getting people to testify about a document they're not supposed to have seen.

Of course, part of the USTR's claims about "transparency" are that it has a variety of ITACs (Industry Trade Advisory Committees) who have more or less full access to the negotiating positions of the US -- which the public and Congress do not. That those ITACs are limited to just a few industries -- often the legacy industries seeking greater protectionism, and not the up and coming innovators who are more important for economic growth. Basically, these ITACs are locked up providing a clearly protectionist attitude towards copyright.

The TPP process has its own ITACs as well -- though, in that context, it means an "International Telecommunications Advisory Committee." More or less the same thing.

Except there's one major difference. Whereas the ITACs having to do with TPP have been quite secretive, the flipside is happening with the ITACs related to the WCIT fight. And it's the US driving the transparency. There are lots of reasons to be concerned by the ITU WCIT process, but the US government is making it easy for the public to participate:

Join me and make a difference. 303,000,000 Americans have just been offered access to the notoriously secret ITU WCIT documents. Just join ITAC, the State Department International Telecommunications Advisory Committee, and enjoy access. “It takes a simple email with a request to be placed on the ITAC listserv, based on some material interest in a given topic,” Paul Najarian of State writes. Simply send an email to join ITAC_Listserve_Requests@state.gov and you automatically have access to ITAC.

So, basically, anyone can join the ITAC concerning WCIT. That's quite different than with TPP, certainly. Oh, and then there's this bit of transparency, straight from the State Department. The following is an email from Terry Kramer, the US Ambassador and head of the US delegation dealing with WCIT:

First, we welcome all interested stakeholders to participate in our WCIT preparatory process and help the U.S. Government form positions in advance of the conference. We solicit this input and feedback through the United States International Telecommunications Advisory Committee (ITAC). I believe that the ITAC process is critically important in helping the U.S. Government convene the type of open, public, and necessary consultations from all stakeholders that helps strengthen our positions in advance of the WCIT. The ITAC has advised the Department of State on U.S. participation in international telecommunications treaty organizations such as the International Telecommunication Union for decades and has, accordingly, been critical in the preparation of prior U.S. positions for meetings of international treaty organizations, developing and coordinating proposed contributions to international meetings and submitting them to the Department of State for consideration. For the WCIT, the ITAC will continue to serve this critical role. Therefore, we welcome any person and any and all organizations, whether corporate or non-profit, to participate in the ITAC if they would like to assist with the WCIT preparatory process.

Second, all WCIT preparatory documents – including revisions of the TD-62 compilations of Member States proposals, the final report of the Council Working Group, and Member State proposals – have been and will continue to be made available to interested ITAC member. It is imperative that we ensure full consideration of a WCIT proposal’s impact on economic growth, the Internet’s openness, and the world at large and this is best done through the adoption of open and transparent processes that allow for wide consultation. Thus, we will continue to share these WCIT documents with stakeholder so that they can provide more informed views and help us develop positions that reflect the input of the diverse range of interests in the United States.

Starting this week, I will proactively communicate our positions on participation and document availability to underscore the US Government’s commitment to transparency.

Okay, just to translate, if that's a bit dry: when it comes to WCIT, where the US finds itself on the defensive, suddenly it's a lover of openness and transparency. The State Department readily invites anyone to join an ITAC and promises to quickly reveal all relevant documents it receives. Furthermore, it knows that sharing the documents will lead to "more informed views."

In other words, all of the things that the USTR refuses to do with TPP -- and which it claims are effectively impossible in an international agreement. Of course, the reality seems to suggest that when the US is in control (as with TPP), then it seeks to hoard and limit info, preferring secrecy to openness and transparency. Yet, when it's not, as with the ITU process, suddenly government officials are magically in love with openness and transparency. In those cases, it's willing to let anyone join an ITAC and is willing to share whatever documents it can provide.

All of this really highlights the dishonesty of the USTR in all of this. While, yes, the negotiation process between these two issues are somewhat different, there's no reason that the USTR can't take after the State Department in terms of transparency concerning an international negotiation. It just chooses not to do so, because then experts and the public might stand up and point out why the TPP is dangerous.

Despite having 45 years to get "warmed up," the era of "open government" may take several more cycles before it becomes a reality. President Obama promised an unprecedented level of openness, but to date, the level of openness remains pretty much unchanged from his predecessors'.

An analysis of open-government requests filed by Bloomberg News shows that most cabinet-level agencies would rather break the law than comply with the requirements of the Freedom of Information act. And by "most," Bloomberg means "nearly all."

Nineteen of 20 cabinet-level agencies disobeyed the law requiring the disclosure of public information: The cost of travel by top officials. In all, just eight of the 57 federal agencies met Bloomberg’s request for those documents within the 20-day window required by the Act.

The Bloomberg analysis also tracked the timeliness of information requests, pointing out that fast turn-time was referred to as "an essential component of transparency" by Attorney General Eric Holder. Bloomberg was seeking disclosure on out-of-town travel expenses generated by top officials.

About half of the 57 agencies eventually disclosed the out-of-town travel expenses generated by their top official by Sept. 14, most of them well past the legal deadline.

The travel costs generated by some other Obama officials --Transportation Secretary Ray LaHood, Energy Secretary Steven Chu, Environmental Protection Agency Administrator Lisa Jackson, and Homeland Security chief Janet Napolitano -- also remain undisclosed.

A request made in June for the travel records of Susan Rice, the U.S. Ambassador to the United Nations, will remain unfulfilled for more than a year, according to a federal official involved in the case.

“We really appreciate your patience in this matter. The estimated completion date is July 2013,” wrote Chris Barnes, a State Department FOIA official, in a Sept. 24 e-mail. Under FOIA, the department is required to offer a timetable for delayed responses.

Travel expense reports aren't exactly the most arcane records. Every business has them and while the government may have more to track, it's hard to believe that requesting this data on only the top official in each department should take longer than the 20-day period. In fact, it's hard to believe that this data needs to be requested at all.

Eric Newton, senior adviser at the Knight Foundation, a Miami-based group that promotes citizen engagement, said agencies have no excuse not to rapidly disclose travel costs.

“In a 24/7 world, it should take two days, it should take two hours,” Newton said. “If it’s public, it should be just there.”

It looks as if FOIA requests, no matter what their reason, are either being stalled or given a very low priority in certain departments. Whatever can't be held off indefinitely is being avoided completely through abuse of exemptions. The Obama administration flexed its exemption muscle during its first year, deploying 50% more than the Bush administration. Since then, the numbers have died down a bit, but there's no reason to start celebrating a "new era of openness." This simply means a drop from a high of 466,402 down to 369,417 exemptions in 2011.

To the surprise of absolutely no one, a majority of these exemptions (231,634) were deployed by the Department of Homeland Security. (The next two are the Dept. of Defense [30,861] and the Dept. of Justice [23,916].) With the handy ability to cite the interests of "national security" at the drop of a hat, the DHS can turn down nearly any request. This hasn't stopped the public from trying, however. The DHS still receives the most requests but it's hard to believe it's receiving 10 times the number of requests the Dept. of Justice is, making its exemption percentage that much more egregious.

Even with exemption deployment being the default setting for a few agencies, there are currently no exemptions that apply to the requested travel information from disclosure. A slight delay could be expected for redaction efforts, but as Bloomberg points out, other agencies redacted personal data and still managed to respond in a timely fashion.

Responsive agencies were able to redact personal details within the FOIA time period. The Federal Housing Finance Agency, the chief regulator for Fannie Mae and Freddie Mac, provided the travel expense records for Acting Director Edward DeMarco’s six trips out of town within 15 days of the filing.

DeMarco’s trips cost $5,653.29, the documents show. Personal information such as his Social Security number and home address were blacked-out in the file.

Some of these delays can also be chalked up to good old fashioned bureaucracy, something which nevers seems to go out of style in DC. The administration is working on a streamlining plan for the FOIA process, but it's being rolled out at a very bureaucratic pace.

The administration acknowledged systemic issues with the FOIA process when the Office of Management and Budget issued guidelines Aug. 24 to all federal agencies on how to streamline government information. The memo called for all government information to be stored in an electronic format by December 2019 -- almost three years after the end of a potential second Obama term.

A glacial pace only a bureaucrat could love combined with what Bloomberg refers to as a "culture of obfuscation" means that requesting something as simple as travel records becomes an exercise in near futility. The Freedom of Information Act has been around since 1966 which means that a.) this isn't just this administration's problem and b.) the government has had more than four decades to make the process run more smoothly. One can only conclude that the government has very little interest in transparency, no matter what promises were made during the "honeymoon" period.

Fortunately, many more entities like the ACLU and the EFF are working to make the government comply with its own law. The process is arduous and far from satisfying, but without a continual push, the government will continue to allow the public to pay for the "privilege" of being told it's "none of their business." Oh, and it should be noted that after I finished this, Mike informed me that he's been waiting for months for the response to a FOIA he filed which, by law, should have been completed back in July. The reason given by the agency in question for the delay: give us more time, because we only have two people working on all FOIA requests.

There's been a whole lot of talk about openness in government, but so far, very little action. Many vague statements and unkept promises have raised the public's expectation of actually being involved, but when push comes to shove, legislators seem much more comfortable doing things the old, closed-door way.

The public has been pushing back against this lack of transparency. The Texas Open Meetings Act requires that most government meetings be open to the general public. There are a few exceptions, but generally speaking, all qualifying meetings must be be announced at least 72 hours in advance and any final actions, decisions or votes must be made in these open meetings. If the Act is violated, the official(s) are subject to fines up to $500 or up to six months in prison.

In response, Texas municipal officials did what most officials do when faced with mandatory transparency: they tried to get the law thrown out as a violation of their First Amendment rights.

Fifteen city council members from across Texas, including Mel Leblanc from Arlington and Henry Wilson from Hurst, sued the state in Midland Federal Court, arguing the law requiring public government meetings criminalizes political speech based on content, is unconstitutionally vague and overbroad.

Specifically, the officials claimed that the law is "content-based" as it applies only to "public policy over which the governmental body has supervision or control." They also expressed their concern that the Act was too vague and had the potential to "criminalize all private speech among a quorum of a governing body that is about public policy," helpfully stating that "most" of this sort of private policy-related speech "does not lead to corruption." Not only was the Act too vague in these officials' opinion, but it was simultaneously "too complex," requiring an "educational course to comply with it." (This last part is true -- an Open Meetings Training section exists in the Act -- but it hardly makes the law overly complex.)

The 5th Circuit Court shot every argument down, reminding officials that the goal of the Act is to bring about more openness and transparency, rather than to be used a blunt-force weapon for constituents to punitively punish government officials.

Referring to the argument that the law is "content-based," the court declared:

"Here, government is not made less transparent because of the message of private speech about public policy: Transparency is furthered by allowing the public to have access to government decision-making," the opinion states. "This is true whether those decisions are made by cogent empirical arguments or coin-flips. The private speech itself makes the government less transparent regardless of its message. The statute is therefore content-neutral."

The arguments that the act is unconstitutionally overbroad and vague were dismissed as well:

"The plaintiffs' argument fails, because it ignores the other purposes of TOMA, such as increasing transparency, fostering trust in government, and ensuring that all members of a governing body may take part in the discussion of public business," the opinion states. "With respect to these other goals, TOMA is not overbroad."

"Neither of the issues plaintiffs point to implicates the underlying purpose of the vagueness doctrine: preventing government from chilling substantial amounts of speech and facilitating discriminatory and arbitrary enforcement," the opinion states. "The concern underlying the vagueness doctrine is that citizens will not be able to predict which actions fall within the statute, leading to arbitrary and discriminatory enforcement."

The Circuit Court found that increasing transparency and trust in government legitimized the inclusion of criminal penalties in the Act, as the overall point of the law was to foster governmental openness rather than curtail any official's First Amendment rights.

It's a great first step and one that will probably be cited if other states follow suit. (Illinois has its own Open Meetings Act.) Of course, this particular battle is far from over. The municipal officials are planning an appeal to the US Supreme Court, which seems like a ton of effort and expense to go through simply to lock the public out of discussions on policies that affect them.

We've discussed, repeatedly, the incredible lack of transparency from the USTR regarding the TPP negotiations. Back in June, we noted that 130 Congressional Representatives all got together to send USTR Ron Kirk a letter, noting their concerns. At the end of August, Kirk replied (pdf) with his standard talking points. He insists that meeting with people is "transparency," even if they can't see the document. He insists that Congress has access to the TPP, even though the USTR locks out key staffers, and doesn't let the elected officials take notes or make copies. He insists that the document needs to be classified because it's the way things have always been done (which is generally a sign of someone not having much of a real argument).

Either way, Rep. Zoe Lofgren is unimpressed. She's now sent Kirk a letter, responding to Kirk's request for "suggestions" on how to improve transparency with some rather simple and straightforward ideas (pdf and embedded below), meaning that it's unlikely the USTR will pay much attention to them. You can read the full version at that link, but here's my summarized version, with commentary:

1. USTR should make the US positions (not those of other countries) open to the public. She doesn't even say the full text needs to be open, but merely summaries of the US's position. It's hard to see any reasonable argument against this. Since the USTR is negotiating on behalf of the American public (in theory, though the reality often seems so different), it seems ridiculous that the USTR would ever not put out at least summaries of its positions on what it's negotiating. Contrary to Kirk's claims, this does not weaken the US's negotiating ability at all. Quite the opposite, it strengthens it by making it subject to public scrutiny and input, while also highlighting to the world our resolve in coming up with a proposal that the public will accept.
2. Any IP section within TPP must have strong support for flexible "limitations and exceptions" for things like fair use and the public domain. While the USTR has shown a willingness to include some text on limitations and exceptions, the most recent leak raises questions since it appears to be rather inflexible and goes much further than is reasonable.
3. USTR should create more representative "trade advisory committees," which it consults on these issues. As it stands, the ITACs (International Trade Advisory Committee) is heavily, heavily biased in favor of older legacy industries, rather than innovators or the public. Lofgren reasonably suggests that a lot more thought and effort should go into fixing how unbalanced these committees are, since they have tremendous influence over the text.

These three basic changes won't fix all the problems -- not by a long shot -- but they would, at the very least, provide a bit more transparency and involvement, while also guaranteeing that we don't push a solely maximalist agenda in other countries. And, because of that, I fully expect the USTR to ignore all of these suggestions.

Jamie Love has provided the testimony he gave at a USTR hearing concerning Mexico and Canada's entrance into the TPP (Trans Pacific Partnership) agreement. As you hopefully recall, the agreement is being negotiated in secret... unless you happen to be a high level lobbyist. Then you get widespread access, which Love calls out:

The contempt for the public is all the more clear when USTR carries out an extensive system of briefing corporate interests on the nature of the proposals it makes in the negotiations, and openly embraces a double standard for access that can best be understood by the public when looking at the amount of money that various parties dump into political campaigns, in part to obtain this type of preferred access. According to USTR, the Advisory board for intellectual property rights is chaired by Richard Kjeldgaard, the Deputy Vice President, International Intellectual Property, PhRMA. That pretty much sums up how this process is perceived. The fact that the Obama Administration cares more about PhRMA than the public as regards access to information is a great disappointment.

But the really insane part about all of this was that it was asking for hearings from people who don't know what's in the text, because they can't see the text because the USTR refuses to release the text. That resulted in some awkward exchanges:

In Eric Schwartz of IIPA's testimony, he claims that the 3-step test applies to all exceptions, including those like the quotation or news of the day exceptions, which are mandatory. When State asks him a question about the TPP text, Scwartz says he has only seen the leaked text. Exchange illustrates the ackward nature of asking for comments on a secret text.

But, much more ridiculous is that the USTR took the farce, and then bizarrely claimed that this hearing, in which people who can't see the text were asked to talk about it, shows how transparent they're being about this process:

“USTR is committed to transparency in trade negotiations,” said Ambassador Kirk. “Today’s hearing is a good example of our engagement with interested stakeholders and members of the public. As the TPP negotiations progress, we will continue to ensure that all interested parties have an opportunity to express their views.”

How many times does it need to be said? That's not transparency. Inviting a bunch of people who can't see the text to comment on what might be in the text might be considered some weird form of "hearing from the public" but transparency is not about hearing from the public -- it's about showing the public what you're doing. It's about information flowing in the other direction which appears to be something that Ron Kirk and the USTR do not understand. At what point will a reporter interviewing Kirk, or perhaps an elected official, ask the basic question of how keeping something secret is transparent? Or ask him if he can explain the difference between hearing from people and being transparent. Because they're very, very different. And it seems immensely troubling that a massive trade agreement that will have far reaching implications is being negotiated in complete secrecy (unless you're a big industry player, of course) by someone who doesn't even understand what transparency means.