Why I’m joining the Sunlight Foundation

I won’t bury the lede on this story: today is my first day at the Sunlight Foundation as a senior analyst. I’m enormously excited to be joining an organization that’s been at the heart of a global movement towards opening governments to the people they serve with technology, from open source to open data.

If you’ve followed my writing and interests over the past decade, you know that I’m passionate about open government in all of its forms. I’ve been humbled to meet thousands of people around the world who are deeply committed to public service and improving how government functions.

This is a natural fit. From improving public access to information to civic engagement to collaboration around code to participation in democratic governance processes, from regulations to legislation, the Sunlight Foundation has been at the cutting edge of making government more open, effective and accountable.

There’s also a personal reason I made this decision: Jake Brewer, a former Sunlighter and White House staffer who we lost far too early last year, frequently urged me to to make the most of my short time on Earth. This is the right place for me to be.

Long-time readers should expect me to continue writing and participating in this role, creating acts of advocacy journalism in the public interest.

I believe that people have a right to know what is being done in their name by their elected governments. Implicit in that view is the notion that representative democracy is the worst form of government, save for all the rest. It’s up to us to protect and improve the states that we have founded and fought to preserve.

As people who have been paying close attention to Sunlight know, it’s an organization in transition. I’m proud to join up with this open government “restartup”, pitching in where ever my talents are helpful. I believe 2016 is going to be a dynamic year at Sunlight, which is why I’ve thrown in my lot with the extraordinary folks on staff.

I hope that you will continue to send your thoughts, feedback, suggestions, tips and ideas my way in the days and months to come.

President Obama’s media critique is missing self-reflection

President Barack Obama​ commented on the state of journalism this week, speaking at the Toner Prize ceremony.

It’s a thoughtful analysis from a voracious, long-time consumer and, it seems, critic of the news that’s worth reading or watching if you’re interested in the role of a free press in a democracy.

As I said a few weeks ago, some may be more to blame than others for the current climate, but all of us are responsible for reversing it.

I say this not because of some vague notion of “political correctness,” which seems to be increasingly an excuse to just say offensive things or lie out loud. I say this not out of nostalgia, because politics in America has always been tough. Anybody who doubts that should take a look at what Adams and Jefferson and some of our other Founders said about each other. I say this because what we’re seeing right now does corrode our democracy and our society. And I’m not one who’s faint of heart. I come from Chicago. Harold Washington once explained that “politics ain’t beanbag.” It’s always been rough and tumble.

But when our elected officials and our political campaign become entirely untethered to reason and facts and analysis, when it doesn’t matter what’s true and what’s not, that makes it all but impossible for us to make good decisions on behalf of future generations. It threatens the values of respect and tolerance that we teach our children and that are the source of America’s strength. It frays the habits of the heart that underpin any civilized society — because how we operate is not just based on laws, it’s based on habits and customs and restraint and respect. It creates this vacuum where baseless assertions go unchallenged, and evidence is optional. And as we’re seeing, it allows hostility in one corner of our politics to infect our broader society. And that, in turn, tarnishes the American brand.

That said, the irony in President Obama asking journalists to hold power to account, pushing for answers and access, was not lost on the journalists he praised, including Alec MacGillis, the recipient of this year’s Toner Prize.

More than a few people have highlighted why the president is a flawed messenger for any critique of journalism, given his administration’s record on press freedom.

“Obama’s own track record shows that if anyone isn’t being held accountable for the promises he’s made, it’s Obama himself – at least when it comes to the deep-diving investigative journalism he professes to want more of,” writes Sara Morrison in the Guardian.

“On the one hand, it’s a good thing that the President has been more open to new media than any of his predecessors, using Twitter and Instagram and Facebook to connect directly with Americans,” writes Mathew Ingram in Fortune. “But journalists who have been frozen out by the Obama administration complain that this feel-good strategy also acts as an end-run around the traditional media, and this strategy has insulated the government from direct questioning.”

“What makes Obama’s speech so unstomachable is the way he praises reporters at an award ceremony by calling their work “indispensable,” “incredible,” “worth honoring” and essential to democracy while simultaneously blocking honest press queries with all the formidable energies of his office,” wrote Jack Shafer in Politico.

As readers of this blog know, these criticisms have merit.

From flawed compliance with the Freedom of Information Act to limiting access to scientists or photographers or using the Espionage Act to prosecute media or cracking down on whisteblowers, the Obama administration’s record on press freedom is deeply problematic.

I wish the President had shown more introspection about his tenure in office, particularly with respect to acknowledging not only failing to support making the Freedom of Information Act policy and reforms he proposed but the fact that agencies actively lobbied against them.

If President Obama had done so, and publicly laid out how he would work to address those failures and the unmet promise of his administration’s commitments to open government in his last year in office, perhaps his remarks would have been received differently by the journalists he praised and criticized.

United States Releases Draft National Open Source Software Policy

IMG_1256On September 23, 2014, the White House announced that the United States would create an official policy for open source software. Today, the nation took a big step towards making more software built for the people available to the people.

“We believe the policies released for public comment today will fuel innovation, lower costs, and better serve the public,” wrote U.S. chief information officer Tony Scott in a blog post at WhiteHouse.gov, announcing that the Obama administration had published a draft open source policy and would now take public comments on it online.

This policy will require new software developed specifically for or by the Federal Government to be made available for sharing and re-use across Federal agencies. It also includes a pilot program that will result in a portion of that new federally-funded custom code being released to the public.

Through this policy and pilot program, we can save taxpayer dollars by avoiding duplicative custom software purchases and promote innovation and collaboration across Federal agencies. We will also enable the brightest minds inside and outside of government to review and improve our code, and work together to ensure that the code is secure, reliable, and effective in furthering our national objectives. This policy is consistent with the Federal Government’s long-standing policy of technology neutrality through which we seek to ensure that Federal investments in IT are merit-based, improve the performance of our Government, and create value for the American people.

Scott highlighted several open source software projects that the federal government has deployed in recent years, including a tool to find nearby housing counselors, NotAlone.gov, the College Scorecard, data.gov, and an online traffic dashboard. platform, and the work of 18F, which publishes all of its work as free and open software by default.

The draft policy is more limited than it might be: as noted by Greg Otto at Fedscoop, federal agencies will be required to release 20 percent of newly developed code as open source.

As Jack Moore reports at NextGov, the policy won’t apply to software developed for national security systems, a development that might prove disappointing to members of the military open source community that has pioneered policy and deployment in this area.

The draft policy sensibly instructs federal agencies to prioritize releasing of code that could have broader use outside of government.

The federal government is now soliciting feedback to the following considerations regarding its use of open source software.

Considerations Regarding Releasing Custom Code as Open Source Software

  • To what extent is the proposed pilot an effective means to fuel innovation, lower costs, benefit the public, and meet the operational and mission needs of covered agencies?
    • Would a different minimum percentage be more or less effective in achieving the goals above?
    • Would an “open source by default” approach that required all new Federal custom code to be released as OSS, subject to exceptions for things like national security, be more or less effective in achieving the goals above?
    • Is there an alternative approach that OMB should consider?
  • What are the advantages and disadvantages associated with implementing this type of pilot program? To what extent could this policy have an effect on the software development market? For example, could such a policy increase or decrease competition among vendors, dollar amounts bid on Federal contracts, or total life-cycle cost to the Federal Government? How could it impact new products developed or transparency in quality of vendor-produced code?
  • What metrics should be used to determine the impact and effectiveness of the pilot proposed in this draft policy, and of an open source policy more generally?
  • What opportunities and challenges exist in Government-wide adoption of an open source policy?
  • How broadly should an open source policy apply across the Government? Would a focus on particular agencies be more or less effective?
  • This policy addresses custom code that is created by Federal Government employees as well as custom code that is Federally-procured. To what extent would it be appropriate and desirable for aspects of this draft policy to be applied in the context of Federal grants and cooperative agreements?
  • How can the policy achieve its objectives for code that is developed with Government funds while at the same time enabling Federal agencies to select suitable software solutions on a case-by-case basis to meet the particular operational and mission needs of the agency? How should agencies consider factors such as performance, total life-cycle cost of ownership, security and privacy protections, interoperability, ability to share or reuse, resources required to later switch vendors, and availability of support?

If you have thoughts on any of these questions, you can email sourcecode@omb.eop.gov,
participate in discussions on existing issues on Github, start a new one, or make a pull request to the draft policy on Github. You can see existing pull requests here and view all comments received here.

With this policy, the White House has fulfilled one of the commitments added to the second National Action Plan for open government in the fall of 2014. While there has been limited progress (or worse) on of the dozens of other new and old commitments made in the three action plans published to date, this draft open source policy is a historic recognition of the principle that the source code for software developed by government agencies or contractors working for them can and should be released to other agencies and the general public for use or re-use.

Obama Administration Secretly Lobbied Against FOIA Reform In Congress

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A Freedom of Information Act lawsuit showed that the Obama administration vigorously lobbied against Freedom of Information Act reform in Congress.  The documents and correspondence, which were obtained through the Freedom of the Press Foundation’s lawsuit against the Justice Department and reported out by Jason Leopold at Vice Media, showed that the administration was literally lobbying against its own policy becoming law.

The Department of Justice’s six page memorandum shows that the agency opposed Congress making the exact language in Attorney General Eric Holder and President Obama’s 2009 memorandums on FOIA law.

The Justice Department opposing FOIA reform direct conflicts commitments made in the U.S. National Action Plan on Open Government required as part of its participation in  the Open Government Partnership.

I asked Ambassador Power how the United States can be a credible leader on open government if the White House and DoJ does this. In an alternate universe, she and the administration would respond publicly.

Unfortunately, it’s easy to predict the outcome of this news: publicly committing to open government reforms and then undermining them privately will erode abysmal levels of trust in government even more.

In the face of hypocrisy from the Justice Department on this count, the public should  call on their Senators to make the Freedom of Information Act reform legislation the House of Representatives passed in January into law.

Congress releases open data on bill status

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Imagine searching Facebook, Google or Twitter for the status of a bill before Congress and getting an instant result. That future is now here, but it’s not evenly implemented yet.

When the Library of Congress launched Congress.gov in 2012, they failed to release the data behind it. Yesterday, that changed when the United States Congress started releasing data online about the status of bills.

For the open government advocates, activists and civic hackers that have been working for over a decade for this moment, seeing Congress turn on the data tap was a historic shift.

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Congressional leaders from both sides of the aisle applauded the release of House and Senate bill status information by the U.S. Government Printing Office and Library of Congress.

“Today’s release of bill status information via bulk download is a watershed moment for Congressional transparency,” said House Majority Leader Kevin McCarthy (R-CA), in a statement. “By modernizing our approach to government and increasing public access to information, we can begin to repair the relationship between the people and their democratic institutions. The entire Congressional community applauds the dedication of the Legislative Branch Bulk Data Task Force, the Office of the Clerk, the House Appropriations Committee, GPO, and the Library of Congress, which worked together to make this progress possible.”

“Building off previous releases of bills and summaries, today’s release of bill status information largely completes the overarching goal of providing bulk access to all the legislative data that traditionally has been housed on Thomas.gov and now also resides on Congress.gov,” said Democratic Whip Steny Hoyer (D-MD). “This is a major accomplishment that has been many years in the making. It goes a long way toward making Congress more transparent and accessible to innovation through third party apps and systems. I applaud the dedicated civil servants who made this possible at the Legislative Branch service agencies, and I want to thank the Bulk Data Task Force for their leadership in this effort. While this largely completes a major goal of the Task Force, I look forward to continuing to workwith them to further modernize the U.S. Congress.”

The impact of open government data releases depend upon publicy and political agency. Releasing the states of bills before Congress in a way that can be baked in by third party apps and services is a critical, laudable step in that direction, but much more remains to be done in making the data more open and putting it to use and re-use. If the Library of Congress opens up an application programming interface for the data that supplies both Congress.gov and the public, it would help to reduce the asynchrony of legislative information between the public and elites who can afford to pay for Politico’s Legislative Compass or Quorum Analytics that is the status quo today.

In an era when Congress job approval ratings and trust in government are at historic lows, the shift didn’t make news beyond the Beltway. Govtrack.us, which is based upon data scraped from the Library of Congress, has been online for years. Until this XML data is used by media and technology companies in ways that provide the public with more understanding of what Congress is doing on their behalf and give them more influence in that legislative process, that’s unlikely to change quickly.

Do nudges and civic apps help or hinder public policy reform?

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The New York Times published a thoughtful exploration of societal probems, behavioral economics and government policy today. The intended big takeaway is clear enough: systemic issues, from poverty to retirement savings, need bigger policy intercessions than “nudges” to address the underlying issues.

To the extent that nudging distracts or delays broader change, the thinking goes, they may even be negative. You can tell that’s the intention because Eduardo Porter, the author, and the editor gives the “kicker quote” — the last word — to this expert:

“The single biggest contribution of behavioral economics to public policy is taking this flawed approach to retirement savings and making it a little bit more viable,” Mr. Loewenstein told me. “The downside is that if we make it just sufficiently viable, people won’t recognize how bankrupt the concept is.”

To his credit, Porter did acknowledge *why* the Obama administration has embraced applying behavioral economics in public policy — “Washington’s political paralysis.” In the face of a Republican-controlled Congress, the White House has had little reason to expect to enact any large social reforms since 2010, which means taking other approaches to improving social outcomes became more attractive. This is relevant to the Democratic presidential campaign as well, but that’s a subject for a separate piece.

As it happens, this is an argument that I’ve run into before, albeit in another context.

In 2013, voluble tech critic Evgeny Morozov made a similar observation about food stamp apps that help people keep benefits:

When I asked him why alerting the poor via a mobile device that their food stamps are expiring (versus a densely worded mailed printed document) is not an achievement, he responded that it “perpetuates a neoliberal regime where paperwork equals precarity equals a barrier to decent life.”

When I responded that, barring a political revolution, this system is the one the poor must negotiate, Morozov suggested that I take my pragmatic attitude somewhere else: a food stamp app is “a perfect example of tech that makes already ugly regimes more efficient.”

In my view, then and now, is that if “paperwork equals precocity,” improving the capacity of poor to access & retain benefits looks like a social good.

Morozov responded that “social goods come in different kinds, and that “the one you advocate is woefully unambitious.”

“Keep pretending that making ugly programs more efficient is apolitical or is in fact a social good,” he suggested.

Morozov asked if I had ever heard of a basic income, arriving at the significant social reform he presumably supports, providing the poor with an automatic benefit instead of one that they must register for and maintain. (The answer, then and now, was yes.)

It is extraordinarily unlikely, however, that the 114th Congress of United States of America will enact such a reform this year or next.

In that context, I’m not sure that food stamps — subsidies for families to buy food — are “ugly.” Removing a social program families depend on and letting our fellow citizens and their children go hungry to try galvanize political reforms would be ugly.

I do think that the way that they are currently delivered and administrated is ugly and must be improved. The software people must use to register for food stamps should be just as user-friendly as ordering a car through Uber.

I also think that applying behavioral economics to existing government programs makes sense, along with better designed digital services, as long as policy makers are transparent about how they are using nudges and disclose evidence to justify the defaults that they establish.

If you share Morozov’s view or have other arguments, please link and share them in the comments.

P.S. I think there was something of a strawman embedded in the Times article: Have President Barack Obama, Richard Thaler, Cass Sunstein or any other public official or researcher ever claimed that “nudges” alone would be enough to lift people out of poverty or develop additional income needed to save enough for retirement? I couldn’t find such an assertion. (If you do, please let us know.)

[FIGURE CREDIT: Re-enrollment rate changes for military service members after the introduction of a prompt, as detailed in the 2015 annual report of White House Social and Behavioral Sciences team]

REPORT: Limited White House Progress On Open Government Commitments

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Today, OpenTheGovernment.org released a report of experts who evaluated how well the Obama administration has met its commitments to the Open Government Partnership in its second National Action Plan for Open Government. As you can see in the chart above, the researchers found only one commitment is fully met. Others, not so much.
What’s behind the hold up ? Here’s what the researchers suggested:
The possible explanations for why government agencies were unable to complete the initiatives varied across the evaluations. For example, the evaluation on the commitment to “Modernize the Freedom of  Information Act,” attributed the limited progress on this commitment to the lack of a strong mandate, absence of political will, and need for greater leadership. The evaluation of the commitment on transparency for legal entities noted “corporate opposition” as an apparent roadblock to that potentially transformative commitment. On the commitment to increase transparency of foreign intelligence surveillance activities, the lack of progress was discussed as possibly being a result of the complex challenges stemming from a deeply engrained culture of secrecy.
The lack of benchmarks and specific language is another commonly noted problem that emerges from this report. OGP guidance notes that governments should develop specific commitments and, where commitments have multiple sub-commitments, they should be broken into “clear, measurable milestones.” While the Civil Society Model Plan for the NAP 2 included detailed benchmarks and timelines for achieving measurable sub-commitments, these are generally not included in the U.S. NAPs.
Keep all of this in mind as The White House and federal agencies talk about new open government commitments.
I was asked to examine the administration’s progress meeting a commitment on the Freedom of Information Act — but failed to submit my own comments. As noted above, while the Obama administration made some progress on a new FOIA website, the Justice Department has so far failed to deliver better FOIA software — or, even better, an API for FOIA software vendors to build on. More problematically, the White House has been completely silent on Freedom of Information Act reform in Congress, despite language that mirrored the information policy that President Barack Obama and former U.S. Attorney General Eric Holder promulgated.
Those issues aside, the lack of progress on the potentially transformative commitments offers an opportunity for the Obama administration in its final year, as well as a set of idea that the presidential candidates could take up on the trail. Pushing even one of these through to completion by next January would be meaningful.
P.S. If you are a reporter covering the campaigns, please consider asking the candidates these  open government-related questions drafted by OpenTheGovernment.org and the American Society of News Editors (ASNE).
 
 
 

New Freedom of Information Act Reform Bill Introduced In Congress

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On Tuesday, the U.S. House of Representatives will once again weigh reforming the Freedom of Information Act to improve how the most important open government law of the United States is honored.

The FOIA Reform Act,  authored by Rep. Darrell Issa (R-CA) is once again on the Congressional Calendar, with an additional 22 page report, H.R. 391.

According to government transparency advocate Lisette Garcia, an expert on FOIA law, the new FOIA bill (H.R. 653) was “heavily negotiated between both parties throughout the drafting stages.” She expects it to be considered in suspension of ordinary debate rules and fast-tracked with little opportunity for public input.

Garcia, who alerted us to the new bill text via email, said that Congressman Jason Chaffetz (R-CO) gave her an advance copy of the bill last December in exchange for her feedback as an experienced FOIA requester.

“Now is the time to register any objection or endorsement you may want to offer regarding any specific provisions,” she wrote.”Feedback to your representative, or any member of the Oversight Committee, may be submitted by calling the U.S. House switchboard at (202) 224-3121.”
That feedback matters because of the way that FOIA reform died in 2014.

Alert readers may recall that Congress was poised to enact historic Freedom of Information Act reforms in late 2014, only to see FOIA reform die as the press looked the other way and lobbying by the financial industry scuttled it at the last minute.

That was a huge loss for the public interest and a giant missed opportunity for public engagement around public access to public information.

Despite FOIA reform passing both Houses of Congress unanimously, the government transparency bill expired when federal agencies, including the Justice Department and the Federal Trade Agency, reportedly lobbied against the bill when it came before the House one final time and Speaker of the House John Boehner failed to put it on the legislative calendar.

The fiasco led press freedom advocates to criticize the Obama administration for failing to support making the same FOIA policy the President introduced and endorsed publicly in 2009 the law of the land.

Over the past several years, the Obama administration has committed and recommitted to modernizing how the federal government complies with the Freedom of Information Act for years.

On the one hand, there has been progress on a new website for requests and pilot projects for ‘release to one, release to all’ policies. The administration has also released  vast amounts of public data online and used technology to inform and engage the public in governance and science in unprecedented ways, from crowdsourcing and challenges to social media.

On the other, there’s a gap between what the Obama administration says about open government and how it follows through when informed members of the public ask tough questions.

The “presumption of openness” presented with such hope on the first day of President Barack Obama’s presidency in 2009 hasn’t led to the change that the public wished to see in 2016.

Researchers at the FOIA Project at Syracuse University found last week that there was a record number of pending FOIA lawsuits in 2015.

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FOIA reform may face higher barriers to passing in the 114th Congress, but it’s more sorely needed than ever.

Here’s one way to give it some more attention. At the end of 2015, the Obama administration outlined 45 different ways it’s working to make the U.S. government more open and accountable to the people it serves.

If the White House intends to fulfill the open government promise it made in January 2009, President Barack Obama could start by adding a single sentence endorsing FOIA reform in Congress during his final State of the Union speech tomorrow night, making the “presumption of openness” law.

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If President Obama still believes that he has led the “most transparent administration in history,” maybe it’s time to ask the public and Congress to make his public policies permanent so that the next inhabitant of the People’s House cannot easily reverse them.

Updates: 

  1. Yes, FOIA is still broken, but for more reasons than you might think. 

    The Washington Times and The Blaze  reported on today’s House Oversight Committee’s report, which lambasted the Obama administration’s handling of FOIA requests as “hobbled” and “broken.”What both publications left out — along with Congressman Issa, who wrote an op-ed in the Daily Caller about the FOIA Oversight and Implementation Act he sponsored — is important. As the Wall Street Journal reported in 2013 and the New York Times reported today, the private sector is a huge user of this open government law. Consulting groups and hedge funds use FOIA requests for business intelligence.

    In fact, according to a 2015 study by Margaret B. Kwoka, an assistant professor at the University of Denver Sturm College of Law, cited by the Times, commercial resellers of data make the majority of FOIA requests at some federal agencies: 75%+ at the FDA, 9% at the Defense Logistics Agency.

    In theory, a “release to one, release to all” policy would address this issue, if FOIA officers and agencies worked to reconcile it with complementary efforts to proactive disclosure of open data online across the federal government — and the Department of Justice was willing to hold agencies and itself to a higher standard.

  2. This reform could weaken the current Freedom of Information Act.
    While they’re supportive of the core reforms that are preserved from the original FOIA Reform Act, open government advocates are decrying the addition of new language that would exempt the U.S. intelligence community from certain provisions of the Freedom of Information Act, including the consultation process that the bill would create.

    Yep: this FOIA reform bill could enable a vast portion of the federal government to be more secretive, not less.

    “The changes to the House FOIA bill, added as a result of a last-minute demand of HPSCI, is a pattern that is becoming all too familiar and objectionable” said Patrice McDermott, the executive director of OpenTheGovernment.org, in a statement.

    “The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government.”

  3. FOIA reform passed the House but the bill is not law yet.

     The Hill reported that the House is poised to approve the FOIA reform bill on Tuesday, Jan.12.

    In fact, the House moved to consider H.R. 653 “as amended” on Monday night, under suspension of the rules, and passed the bill under voice vote.

    Now that the House has passed FOIA reform (again), it’s on to the Senate.

 

U.S. Civil Society Groups release model National Open Government Action Plan

This is the week for seeking feedback on open government in the United States. 4 days ago, the White House published a collaborative online document that digitized the notes from an open government workshop held during Sunshine Week in March. Today, Abby Paulson from OpenTheGovernment.org uploaded a final draft of a Model National Action Plan to the Internet, as a .doc. I’ve uploaded it to Scribd and embedded it below for easy browsing.

Nelson shared the document over email with people who contributed to the online draft.

Thank you so much for contributing to the civil society model National Action Plan. The Plan has made its way from Google Site to Word doc (attached)! We will share these recommendations with the White House, and I encourage you to share your commitments with any government contacts you have. If you notice any errors made in the transition from web to document, please let me know. If there are any other organizations that should be named as contributors, we will certainly add them as well. The White House’s consultation for their plan will continue throughout the summer, so there are still opportunities to weigh in. Additional recommendations on surveillance transparency and beneficial ownership are in development. We will work to secure meetings with the relevant agencies and officials to discuss these recommendations and make a push for their inclusion in the official government plan. So, expect to hear from us in the coming weeks!

From Stickies to Wikis: White House seeks online feedback on open government

In a followup post, the White House shared a link to a collaborative online document where the notes from an open government workshop held during Sunlight Week were posted online for comment. In doing so, they moves from sticky notes to a wiki.

What will come of asking the broader public for feedback on the ideas that a workshop of advocates and policy wonks in DC suggested? Stay tuned.