U.S. Intelligence Community Trying to Rebrand Itself

March 14, 2014

How the US intelligence community attempts to rebrand itself – on Tumblr

Spencer Ackerman

Critics have argued the documents on the site are most often presented without critical disclosures. Photograph: IC On The Record

Amie Stepanovich was doubly rewarded when she won her transparency lawsuit against the US government. Not only did Stepanovich, formerly a lawyer for the Electronic Privacy Information Center, receive some of the surveillance documents she sued to obtain, but the office of the director of national intelligence credited her effort on its Tumblr.

That Tumblr is one of the centerpieces of the intelligence community’s attempts at rebranding in the wake of what it considers a crisis wrought by Edward Snowden: a web clearinghouse of formerly classified documents related to the National Security Agency’s sweeping surveillance authorities, an exercise in transparency.

But the documents on the site are most often presented without a critical disclosure. While statements accompanying them refer to decisions by director James Clapper and other administration officials to release the surveillance-related information, nearly all the instances of such declassification – eight out of 12 – came to be published only after the government lost transparency cases, a fact that the Tumblr, known as IC On The Record, most often omits or obscures.

“All along, in reaction to the disclosures made by Snowden, the administration and corresponding agencies have acted like they’ve wanted to engage on conversations related to these topics for a long time, and these were coming and they were preparing to reveal information to the public, but there’s no evidence that would’ve happened without the stimulus provided by Edward Snowden releasing a lot of documents about government surveillance,” said Stepanovich.

Stepanovich’s case is the exception – and, perhaps, the new rule.

On March 4, IC On The Record released information detailing how many times the government requested and received authorization to use devices that secretly log incoming and outgoing telephone calls. It prominently credited the Electronic Privacy Information Center (Epic) lawsuit.

A more typical post came on January 17. IC On The Record –“IC” referring to the intelligence community; the journalist Marcy Wheeler has dubbed the site I Con The Record – published 24 documents detailing the evolution of a secret surveillance court’s authorizations for the NSA to collect virtually all domestic call records. It did so only after losing a lawsuit to the American Civil Liberties Union(ACLU).

Not only did IC On The Record make no mention of the ACLU, director of national intelligence James Clapper said in a post accompanying the documents, “Today I authorized the declassification and public release of additional documents relating to collection” of the domestic call data.

“They’re trying to characterize the intelligence community as being more transparent, and because of Snowden, it is. But it’s disingenuous to portray this information as coming from a proactive disclosure,” said Angela Canterbury, the policy director of the Project on Government Oversight.

In all, the Tumblr contains 12 posts containing document disclosures, sometimes voluminous ones. (Two additional early posts, tagged “declassified,” contain either the director’s statements defending bulk surveillance or an announcementof a renewed court order.) Two of them are releases of updated court orders for domestic call records that had been previously released. Another is a release, under the director’s initiative, of secret congressional testimony by administration and intelligence community lawyers.

The remaining nine posts providing declassified material, containing thousands of pages of documents, arose from successful disclosure lawsuits by the ACLU, Epic and the Electronic Frontier Foundation. Only one of those posts, the one about the Epic suit on March 4, contains any such acknowledgement.

James Clapper, director of national intelligence. Photograph: Pablo Martinez Monsivais/AP

One of them, from December 17, references an order from a US district court in California mandating the release, but avoids mentioning EFF, the organization that prompted the court to act.

In a typical post, from November and accompanying documents released pursuant to another EFF lawsuit, Clapper commented, “These documents were properly classified and their declassification was not done lightly.” The posts often mention a June directive from President Obama to “to declassify and make public as much information as possible” about bulk surveillance.

The office of the director of national intelligence did not respond to a request for comment about the selective disclosures, nor whether the Epic suit inaugurated a change in its disclosure policy.

Transparency has become the new buzzword in intelligence circles as officials attempt to preserve as much of their post-9/11 surveillance powers as they can from congressional restrictions.

Clapper in particular has claimed to make it a priority. In a recent interview with the Daily Beast, the director mused that had the intelligence agencies disclosed the bulk domestic phone records collection of its own volition, the public would support it.

“What did us in here, what worked against us was this shocking revelation,” Clapper said.

Several of the organizations that brought the transparency suits said they were more focused on having the information released than having the intelligence community acknowledge their efforts.

“As far as we’re concerned, the government can explain the disclosures however they’d like to. The important fact is that most of this information should never have been secret in the first place. We’ll continue to press the government to disclose more,” said ACLU attorney Alexander Abdo.

“EFF’s number one priority is making sure this information is provided to the public, whether or not the government wants to give us credit for it,” said EFF lawyer Mark Rumold.

“But the public and the press should know that these disclosures aren’t some act of government magnanimity – their hand was forced by organizations like EFF, ACLU, and Epic that have been trying to pry this information loose for years.”

Stepanovich, now a lawyer with the digital and human rights group Access, gave a similar assessment.

“I think it’s a great step forward if they’re going to start crediting groups who are pushing hard to have more information revealed about surveillance programs,” Stepanovich said.