Despite this growing pressure, nothing much has happened on either side of the Atlantic as far as providing greater openness for major negotiations is concerned. Perhaps frustrated by this lack of movement, the transparency organization Corporate Europe Observatory decided to take legal action against the European Commission back in February over the secret trade talks between the EU and India.

As the detailed history of this case (pdf) explains, the European Commission was apparently quite happy to pass on copies of certain documents to industry associations, but when Corporate Europe Observatory asked for the same, they only received censored versions. The lawsuit accuses the European Commission of discriminating in favor of corporate lobby groups and of violating the EU's transparency rules. As the Corporate Europe Observatory asks:

how can documents that the Commission has already shared with the business community at large suddenly become confidential and a threat to the EU's international relations when a public interest group asks for their disclosure? This is the core question raised by the lawsuit.

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The move could potentially toughen the criteria for drone strikes, strengthen the program's accountability, and increase transparency. Currently, the government maintains parallel drone programs, one housed in the CIA and the other run by the Department of Defense. The proposed plan would unify the command and control structure of targeted killings and create a uniform set of rules and procedures. The CIA would maintain a role, but the military would have operational control over targeting. Lethal missions would take place under Title 10 of the U.S. Code, which governs military operations, rather than Title 50, which sets out the legal authorities for intelligence activities and covert operations. “This is a big deal,” says one senior administration official who has been briefed on the plan. “It would be a pretty strong statement.”

Perhaps most important is that the CIA’s program is “covert”—which is to say it is not only highly classified, it’s deniable under the law. That means the CIA, in theory, can lie about the existence of the program or about particular operations. The military’s targeted killing program, however, is “clandestine”—which means it is secret but not deniable.

A group of journalists, represented by the Center for Constitutional Rights (CCR), has been engaged in a legal battle to force the court to be more open. While the government has belatedly released a small portion of documents related to the case, many of the most important orders have been withheld—such as the orders relating to the speedy trial proceedings or the order related to Manning’s prolonged solitary confinement.

Michael Ratner, president emeritus of CCR, called the government "utterly unresponsive to what is a core First Amendment principle." Ratner noted this is a public trial, the information being presented is not classified, and that contemporaneous access to information about the trial is necessary to understanding the proceedings. Nonetheless, the lawsuit has been tied up in the appeals court for months.

The US government and its military has carefully ensured that people hear about Manning from the government, but do not hear from Manning himself. It is way past time for Manning's voice to be heard.

Up to this point, during the deployment, I had issues I struggled with and difficulty at work. Of the documents release, the cables were the only one I was not absolutely certain couldn't harm the United States. I conducted research on the cables published on the Net Centric Diplomacy, as well as how Department of State cables worked in general.

"In particular, I wanted to know how each cable was published on SIRPnet via the Net Centric Diplomacy. As part of my open source research, I found a document published by the Department of State on its official website.

"The document provided guidance on caption markings for individual cables and handling instructions for their distribution. I quickly learned the caption markings clearly detailed the sensitivity of the Department of State cables. For example, NODIS or No Distribution was used for messages at the highest sensitivity and were only distributed to the authorized recipients.

"The SIPDIS or SIPRnet distribution caption was applied only to recording of other information messages that were deemed appropriate for a release for a wide number of individuals. According to the Department of State guidance for a cable to have the SIPDIS caption, it could not include other captions that were intended to limit distribution.

"The SIPDIS caption was only for information that could only be shared with anyone with access to SIPRnet. I was aware that thousands of military personnel, DoD, Department of State, and other civilian agencies had easy access to the tables. The fact that the SIPDIS caption was only for wide distribution made sense to me, given that the vast majority of the Net Centric Diplomacy Cables were not classified.

"The more I read the cables, the more I came to the conclusion that this was the type of information that should become public. I once read and used a quote on open diplomacy written after the First World War and how the world would be a better place if states would avoid making secret pacts and deals with and against each other.

"I thought these cables were a prime example of a need for a more open diplomacy. Given all of the Department of State cables that I read, the fact that most of the cables were unclassified, and that all the cables have a SIPDIS caption.

"I believe that the public release of these cables would not damage the United States, however, I did believe that the cables might be embarrassing, since they represented very honest opinions and statements behind the backs of other nations and organizations."

Today after a short plenary session, the informal negotiations were scheduled to begin behind closed doors again. But WIPO decided to permit NGOs attending the negotiations to follow a live audio of the discussions, subject to a ban on the use of the Internet and related social media to report on the negotiations.

The ban specifically singled out "twitter, blogs, news reports, and email lists" and extends to social media in general.

I assume we will be permitted to report and comment in other ways that do not rely upon this audio feed, but people will be careful because there is now a threat to cut off that access if the the forbidden information starts showing up on the Internet, and it maybe difficult to persuade people that the audio feed was not the source. This means less information will be disseminated, including the reports from the relatively accessible negotiators, of which there are many who are willing to talk in the breaks. These bans on the use of social media are increasingly being sought by transparency averse negotiators, particularly when pursuing anti-consumer and anti-freedom policies.

The reason is that drug approval is frequently based on partial or even misleading evidence from the crucially-important clinical trials that are conducted to check that a new treatment is safe and efficacious. Similarly, prescribing doctors often only have access to incomplete information when they are choosing drugs for a patient. Not knowing all the facts about medicines not only leads to a huge waste of money, since ineffectual or inappropriate drugs are sometimes prescribed, but can have life-threatening side effects. Here, for example, is a recent case involving the pharma giant GlaxoSmithKline (GSK) and its diabetes drug Avandia:

The licence for Avandia was revoked in Europe, in September 2010, because of evidence that it could cause heart failure and heart attacks. The drug can still be prescribed in the US, but not to patients at risk of heart problems.

A scientist with the Food and Drug Administration estimated that Avandia could have been responsible for 100,000 heart attacks in the US.

The manufacturer, GlaxoSmithKline, has admitted concealing data about the damaging side-effects of the drug, and there is evidence of the drug's harmful effects.

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The spy agency has stated that the certificate signed by Finance Minister Bill English as Acting Prime Minister was the only one found in "a thorough search of our files".

Mr English was asked by the GCSB to sign the "ministerial certificate" while Prime Minister John Key was overseas in August. The certificate said knowledge of the GCSB's involvement in the Dotcom investigation would damage its ability to detect or prevent serious crime.

The fact it was the only ministerial warrant in 10 years was discovered by the Green Party under the Official Information Act. Its rarity has led Green Party co-leader Russel Norman to question how Mr Key stayed ignorant of its existence until a month after it was signed.

In response to the anti-WCIT “campaign,” according to the September retreat’s preparatory materials, the ITU reluctantly launched a “counter-campaign,” which the agency believes “has been fairly successful outside the US and somewhat successful even in the US,” where “some of the statements made to denigrate ITU and WCIT are so extreme that they were easy to challenge and rebut.”

Going forward, the ITU focused at its meeting on the possibility of an “intensive anti-ratification campaign in OECD countries, based on the so-called lack of openness of the WCIT process, resulting in a significant number of countries refusing to ratify the new ITRs.” The ITU calls this possibility “the so-called ACTA scenario,” referring to sometimes violent protests against the secret ACTA treaty that took place this year.

To develop the next phase of its “counter-campaign,” the ITU hosted speakers from leading PR and advertising agencies to advise them on the use of social media. For example, Matthias Lufkens, Head of Digital Strategy for global public relations firm Burson-Marsteller, gave a presentation on how his agency helped the World Economic Forum leverage tools such as Facebook, Twitter, and Flickr to fend off “occupy”-style protests that occurred both physically in Davos and on the Internet.

“There is a risk that [the ACTA scenario] will happen, but our communication campaign can mitigate this,” the internal document says.

Here’s the unvarnished truth, which no PR agency can help the agency talk, tweet, or prevaricate their way around: The commercial Internet emerged and matured entirely since the treaty was last reviewed. It developed in spite of the ITRs, not because of them.

There is a familiar pattern here of ambitious regulators who have no expertise and little experience with the Internet proclaiming themselves its benevolent dictators, only to find the peasants revolting before the coup has even started.

The ITU is no different than the sponsors of ACTA, SOPA, PIPA, and other attempts at regulating the Internet, its content, or its users by governments large and small. Like the media lobbyists who continue to see the successful fight to kill SOPA and PIPA as a proxy war waged solely by Google and other Internet companies, the ITU simply can’t accept the reality that Internet users have become their own best advocates.

"There are phone numbers, addresses, more social security numbers, license plate numbers and then we find all these incident reports from police."

One confetti strip indicates that it's from an arrest record, and other strips offer more detail. "This is really shocking," Finkelstein said. "It says, 'At 4:30 A.M. a pipe bomb was thrown at a house in the Kings Grant' area."

Most significant, the confetti strips identified Nassau County detectives by name. Some of them are apparently undercover. Their social security numbers, dates of birth and other highly sensitive personal information was also printed on the confetti strips.

For the sake of understanding the story, this is the photo in question.

After a review of the parties' Joint Motion and proposed order, the Court finds that the parties have offered no compelling basis to overturn the Court's long-standing principle and practice of maintaining Court proceedings and documents public. "The Federal Judiciary has zealously protected the right of all citizens to free, open and public trials.'' Dorsman v. Glazer.... Open judicial proceedings are "rooted in the 'principle that justice cannot survive behind the walls of silence,' and in the 'traditional Anglo-American distrust for secret trials.'" Sheppard v. Maxwell.... Except in rare instances, it is the right of every American to see the public's business conducted in an open forum.

Moreover, the Court notes an inconsistency in Defendant joining the instant motion. In her Second Motion to Dismiss, Defendant argued at length that Plaintiff's lawsuit was directed at preventing her from publishing online news articles critical of Plaintiff's business; this case was allegedly no more than an attempt to silence her speech. But with this Joint Motion, Plaintiff and Defendant want to keep the factual development of this case secret.

ln addition, the parties elected to seek (and defend) relief in a publicly operated forum, namely the United States District Court for the Southern District of Florida. The proceedings held in federal and state courts are open to public observation by any interested party. Pursuant to Local Rule 5.4 for the Southern District of Florida, absent some extraordinary need for secrecy, the judicial acts performed should be open to public scrutiny

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.

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.

"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?"

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.

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.

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.

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 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.

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.”

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.

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.

The stakeholder engagement events in the morning were followed by a stakeholder briefing in the afternoon. The briefing allowed registered individuals from civil society and the public to ask questions of and make comments to eight out of the nine negotiators who represent a TPP country. The press was barred from the room. Roughly 25 people rose from the audience to ask questions to the trade delegates during the 90-minute briefing period. As predicted, they were not transparent about the talks, revealed little new information, and delegates also refused to make any comments based on leaked version of texts—the only text EFF and other public interest organizations have had access to. It is difficult for public stakeholders to ask accurate questions or receive any substantive answers when the content of the agreement continues to be shrouded in secrecy.

Rossini asked the USTR about its claims that the TPP’s intellectual property chapter will provide for fair use in its IP chapter, and how those public statements starkly contrast with the recent leaked TPP chapter that shows that the US delegation is in fact pushing for provisions that will restrict non-US countries from enacting fair use. Further, they neglected to comment on the fact that the leaked test has the potential to limit US fair use to the three-step test restrictions. In response, the lead negotiator for the USTR dodged the question and stated that they would not comment on issues raised by text EFF has “purportedly” received. The representative did acknowledge that fair use would be discussed during the week's meetings.

The last question of the briefing came from EFF’s International Intellectual Property Coordinator, Maira Sutton, who raised from the crowd and asked the lead negotiator how they justify pushing for ever more restrictive copyright laws in the agreement even though it has become clear, with the defeat of ACTA in Europe, that users are sick and tired of international agreements regulating their Internet through overprotective intellectual property provisions... In response, the lead negotiator for the US stated that the standard for copyright regulation in international agreements has been the US Digital Millennium Copyright Act (DMCA). They claimed that the DMCA was legislated fairly and is an effective model for copyright enforcement in the US. The representatives' answer contradicted the fact that EFF and others have been arguing for years that the DMCA is fraught with problems. Sutton responded that based upon what we saw in the recent leaked text on fair use, developing countries would not be able to implement such copyright laws as soundly given that the three-step test language restricts signatory nations from determining and establishing fair use as they see fit.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

Yesterday morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.

Cross-posted from Cato at Liberty.

This Court should find that such an arrangement is uncon-stitutional. More than thirty years ago, the U.S. Supreme Court recognized a presumptive right of access to criminal proceed-ings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). As discussed below, the Court has reiterated its holding repeatedly, and the nation’s military courts have applied the same reasoning to extend this right of public access to courts-martial. Amici recognize that various interests, including the need to protect national security information, may justify sealed records in certain circumstances. They do not, however, general-ly justify complete secrecy. In fact, previous disputes about claims of national security have been litigated in the open: “Briefs in the Pentagon Papers case and the hydrogen bomb plans case were available to the press, although sealed appendices discussed in detail the documents for which protection was sought.”

The TPP negotiations have taken place under an unprecedented shroud of secrecy, denying all but a very few any input into the terms of the agreement. The chapters that have been leaked are quite disturbing, revealing plans that would threaten public health, the environment, internet freedom, and the general well-being of perhaps billions of people. Here's a little taste of what the agreement would include: foreign investor protections that would help corporations offshore jobs, powers that allow multinational corporations to challenge domestic regulations before international tribunals, a strengthening of patent and intellectual property rules which would, among other things, raise the price of life-saving medicines in third world countries, and the ability for Wall Street to roll back safeguards meant to restore financial stability worldwide.

Imagine being invited to formally offer input on a huge piece of legislation, a proposed international agreement that could cover everything from intellectual property rights on the Internet to access to medicine to investment rights in the agreement’s signatory countries. For 10 minutes, you’d be able to say whatever you’d like about the proposed law—good, bad, or indifferent—to everyone involved in the negotiations. But there’s a caveat: All of your questions, all of your input, on what may be the most controversial part of the package, would have to be based on a version of the proposed international agreement that was 16 months old. And in that 16-month period, there were eight rounds of negotiations that could have changed any and all of the text to which you had access, but no one could tell you if that version was still accurate.

Would you still take the deal? This is not a hypothetical question; rather, this is the take-it-or-leave-it offer made to the public in May by the United States Trade Representative regarding the intellectual property rights chapter of the massively important but little-known Trans-Pacific Partnership Agreement (TPP).

(d) DELAY OF NOTIFICATION AUTHORIZED FOR LAW ENFORCEMENT, NATIONAL SECURITY, OR HOMELAND  SECURITY PURPOSES.—No civil or criminal cause of action shall lie or be maintained in any Federal or Statecourt against any entity, and any such action shall be dismissed promptly, for a failure to disclose a cybersecurity threat indicator if—

(1) the Attorney General or the Secretary determines that disclosure of a cybersecurity threat indicator would impede a civil or criminal investigation and submits a written request to delay notification for up to 30 days, except that the Attorney General or the Secretary may, by a subsequent written request, revoke such delay or extend the period of time set forth in the original request made under this paragraph if further delay is necessary;

(2) the Secretary, the Attorney General, or the Director of National Intelligence determines that disclosure of a cybersecurity threat indicator would threaten national or homeland security and submits a written request to delay notification, except that  the Secretary, the Attorney General, or the Director,may, by a subsequent written request, revoke such delay or extend the period of time set forth in the original request made under this paragraph if further delay is necessary.

I suppose there is another possibility as well – that they might want to stop temporarily the sharing of CTI when the threat being disclosed is one that has been created by .... Well, NSA. In fact, if you believe that, then the reason the government so much wants to be at the center of CTI sharing is not just to protect the public but also to protect its own methods.

By statute, patent applications are published no earlier than 18 months after the filing date, but it takes an average of about three years for a patent application to be processed. This period of time between publication and patent award provides worldwide access to the information included in those applications. In some circumstances, this information allows competitors to design around U.S. technologies and seize markets before the U.S. inventor is able to raise financing and secure a market.

The public interest briefing was booked last week and advertised to all delegations, including the host USTR. An hour after the invitation was sent, we received a cancellation of our venue by the hotel. The cancellation by by Sophie Jones, Event Sales Manager, Sofitel Los Angeles stated:

“I am sorry to be the bearer of bad news but unfortunately we will not be able to move forward with your luncheon for Tuesday January 31st. It was brought to my attention that we have a confidential group in house and we will not be allowing any other groups in the meeting space that day. Again, my apologies for the late notice. Hopefully we can work together in the near future.”

After receiving the cancellation, members of an advocacy organization called the hotel and were able to book a room for a claimed private event not related to the TPP. Apparently only TPP-related events were banned from the hotel at the request of an unidentified party. USTR is serving as the host of this meeting.

The film industry did not have similar problems – they hosted a multi-hour tour of 20th Century Fox Studies last night, led by a representative of the studio’s government relations office.