open government

What It Means for Our Movement That the NSA is Halting One of Its Worst Surveillance Practices

eff-nsa-utah-data-center

NSA’s data center in Utah

The New York Times broke the news Friday that the NSA is ending a surveillance program that has been the subject of years of criticism by civil liberties advocates and members of Congress alike. The news came in waves: a brief snippet from Charlie Savage, then a slightly longer update, then confirmation from the NSA, and then the final version (I assume) from Savage that went up hours after the original.  The NSA is promising to end the practice of collecting Americans’  emails and text exchanges with foreigners that mention key identifiers—like email addresses—that aren’t actually directed to or from the targets of NSA surveillance.  (For my fellow tech policy nerds, we call this “about” surveillance.)

Not only that, but the NSA promises to “delete the vast majority of its upstream internet data to further protect the privacy of U.S. person communications.”

My colleague Kate has a thorough write-up of how to consider this within the larger context of NSA reforms Congress needs to enact, and everyone should go read it. I’m not here to talk about the legal and technical landscape related to this announcement.

I just want to talk about how awesome this moment is.

For the better part of a decade, organizations like the ACLU and EFF have been confronting surveillance abuses by the NSA through the courts. Members of Congress like Senator Wyden have demanded answers to NSA surveillance. And whistleblowers like Mark Klein, Bill Binney, Thomas Drake, and Edward Snowden have risked their freedom to tell the American public the truth about what our government is doing in our name. Countless journalists—including the inimitable Glenn Greenwald and Laura Poitras—have spent years trying to tell the esoteric, muddled story of NSA digital surveillance in a way that regular people could understand.

I think of these actions as seeds of a movement. But the true power of public scrutiny only happened because people actually cared. And make no mistake: even if the FISA Court drove this decision, the ecosystem of resistance that has been built over years created the environment necessary for that decision to happen. Courts, even secret courts, don’t make decisions in a vacuum.

Millions of people—here in the United States and globally—honestly didn’t like the fact that the NSA was sitting on a mountain of intimate digital data like Scrooge McDuck on a pile of gold coins. People were incensed enough to email Congress in droves, ask questions at town halls, send letters to the editor, share articles on Twitter, and take to the streets in protest. I’ve been on those streets and spoken with many of those people, and I’ve been struck by how deeply personal this fight is to so many of them.

Something I’ve noticed in years of speaking to people about NSA spying is that many people are driven to protect the Internet itself. The Internet offers a way to connect millions of people globally to one another and to information, and it’s benefited so many of us in personal, daily ways. It’s not surprising we’re protective of it. For me and others, this fight feels personal because we genuinely like the Internet. It’s fascinating, it brings us joy, and we don’t want the NSA messing it up for us, our friends, and future generations.

And just like we couldn’t have a nice evening our with friends with a government goon standing next to us listening in on our conversations, we can’t enjoy the freedom of the weird, unpredictable, creative Internet when a digital Big Brother is casting a shadow over our communications.

And yes, for all there is still work to be done, this is a moment to celebrate.  Even though so many other aspects of our American political system are teetering toward a more oppressive state, we can all take a moment to enjoy the fact that someone in an NSA data center or office building right now is actually working on deleting millions of records from their databases.

This isn’t the end. I know we have a big fight in Congress this year around NSA spying, and that we need these changes—as well as others—clearly codified into law. But I for one am celebrating. Years of pressure and scrutiny, built on the foundation of damning leaked evidence, were the necessary catalyst for this moment. 

In the wake of the announcement, Edward Snowden tweeted that “People said speaking up isn’t worth the risk. Today, we can see they were wrong. Blow the whistle, change the world.”

Blowing the whistle on abuses is one way to fuel a movement. But remember that it doesn’t make a difference unless people are willing to care. We got to this moment not just because of a handful of brave whistleblowers who spoke out, but because millions of people listened to them and cared.

Important note: most of the time when I write about NSA spying or digital rights, I do it on the EFF blog in my capacity as a blogger for EFF, with strict legal oversight of everything I say. This is a blog post about my personal opinions and doesn’t reflect the views of EFF, or its legal positions or interpretations

How we crowd-sourced transcripts of the entire Manning court martial

Originally published on the Freedom of the Press Foundation site.

On May 9, 2013, we made a bold claim on this website. We promised to crowd-fund enough money to hire independent court reporters to provide transcripts of the entire Manning court martial.

We knew that it was vital that the public have a virtual seat in Chelsea Manning’s trial1.  A public record of the court proceedings could fuel better, more accurate, and more frequent news coverage of the trial and could hold the government to account for its actions during the court martial. The government had forbidden tape recorders or cameras from entering the courtroom, so the only way to get an accurate accounting of the proceedings was sending in someone to take notes by hand.

Paying professional court reporters to transcribe the proceedings seemed like the perfect solution – if it was possible.

We knew it would be hard, but had no idea how hard. At every turn, we faced new obstacles to getting transcripts of the trial. So, finally, here’s the story of what we faced – and all the people who helped us surmount those obstacles.

Where do you even find a court reporter?

The very first problem we faced was finding a court reporter that would work with us. We knew we needed a reputable court reporter/stenographer that could do real-time transcripts and would be familiar with military jargon. But many court reporters rely on military court systems for their livelihood and didn’t want to jeopardize those relationships. In addition, we were asking for an incredibly quick turnaround time in conditions that didn’t allow the court reporters a recorded backup, or the ability to ask for any court participants to slow down or repeat their statements, like most court reporters can. Given the long court hours, this puts a toll on any court reporter, no matter how good.

Tony Rolland

Tony Rolland, who connected us with Gore Brothers

We were incredibly thankful when court reporter Tony Rolland (pictured right) approached us and recommended Gore Brothers. They are a professional court reporting firm that serves the larger DC/Baltimore metropolitan area. While other court reporters turned down our business, Gore Brothers understood how important it was to have accurate, timely records available to the public for one of the most important trials in our lifetime. Even though it was a politically contentious issue, Gore Brothers took us on and agreed to send in court reporters.

Working with Gore, we realized that one court reporter wasn’t going to be nearly enough. Instead, Gore brought together a team of 6 court reporters so that there would be continual coverage throughout the many weeks of the trial.

We know that journalists need transcripts quickly in order to write stories about the trial, and so we prioritized speed in getting these transcripts made. That meant two court reporters every day: one covering the morning and one covering the afternoon. By having court reporters only covering half days, we could ensure that we got transcripts edited and live on the website faster – morning sessions would go live at 7 PM in the evening, afternoon sessions would be published early the following morning.

Wait, it costs how much?

The second barrier was funding. We knew that professional court reporters were expensive, but we underestimated how expensive. We originally believed we needed to raise $40,000-$50,000 to cover the entire trial.  But it quickly became apparent that we needed to raise twice that much.

What made this possible? Amazingly, it was individual donors. Over one thousand six hundred people chipped in $10, $20, and $50 because they believed that the Manning trial should be public for the whole world. The average donation was under $100.

We made the platform, but ultimately it was the generosity and faith of individuals making small contributions that made the transcripts possible.

Taking on the U.S. government

Money and a team of top-notch court reporters weren’t the only thing we needed to cover the Manning court martial. We also had to get into the courtroom, and the government made it very difficult for us and many other media organizations to access the trial.

We knew there were strict regulations preventing any electronic equipment in the courtroom, but the media center allowed journalists to bring in laptops as long as they didn’t record or connect to the Internet during the proceedings.

We knew we were far more likely to be allowed to bring stenography equipment into the media center than into the courtroom, so we teamed up with the Verge, the Guardian, and Forbes. Each organization requested a press pass for their reporter and a second press pass for a court reporter to accompany their reporter.

Unfortuantely, each was issued only one press pass, meaning there wasn’t an extra space for our court reporter.

And we weren’t the only ones shut out. Of the 350 media applications the government received, only 70 were granted.

We weren’t ready to give up. With the help of the Reporters Committee for Freedom of the Press, we organized a coalition of twenty major media organizations – including the Los Angeles Times, NPR, Fox News, and the New Yorker – and sent a letter to the Army requesting two additional press passes.

We also tried to find someone to lend us a press pass.  We reached out to individual media organizations and also tweeted in hopes that someone would lend us one, with no luck.

I flew out to Fort Meade the weekend before the court martial was scheduled to begin and began approaching journalists who had been granted press passes. Unsurprisingly, almost all of them refused to lend Freedom of the Press Foundation a pass.  Many wanted to help, but they didn’t want to give up their press passes for the first day of a historic trial.

Finally, the night before the trial began, we managed to get one press pass for the first day. Nathan Fuller, a blogger for the Private Manning Support Network2, temporarily loaned us his pass. We are deeply indebted to Nathan for giving up his seat in the media center that day. It’s the only reason we managed to get a transcript of the first day.

After the first few days, the crowd in the media center thinned. We were able to use donated press passes from ARD German Radio, the Verge and Forbes.

During the trial

When court reporters work, they use a computerized stenotype machine to make a quick transcript. They sit close to the judge so that they can hear everything, and have the ability to interrupt proceedings or ask for clarifications in order to get an accurate transcription.  Above all, court reporters make a recording of everything, and double-check their transcripts against the audio recording.

Our court reporters were denied all of these things. They were in a room with the rest of the media, watching a live video feed of the court proceedings. The audio was muffled and difficult to understand at times, and there was no way to interrupt proceedings when things were hard to understand.

Worst of all, they were forbidden recording devices – so there was no way to double-check the accuracy of their notes. Instead, our court reporters simply had to transcribe as quickly as possible, often without breaks for long stretches of time, and try to get every word down accurately.

We also had trouble switching out court reporters midday. The strict rules meant that everyone who wanted in the media center had to be on base by 8 AM. This meant that both of our court reporters had to be on base at 8 AM, even though one didn’t start working until after lunch.  It was not until the defense brought this issue to the judge was our court reporter allowed to show up half way through the day.

Alexa O'Brien

Alexa O’Brien outside the media center at Ft. Meade. Photo by Xeni Jardin.

On more than one occasion, we ran into technical difficulties. Once we even lost a large section of the transcription.  Journalist Alexa O’Brien (pictured left) –whose own meticulous hand-typed transcripts of the trial have been an invaluable service to the public–generously offered to lend us her transcript from that day, for which we are deeply grateful. Her attention to detail is one of the many reasons we awarded Alexa a grant before the trial began.

After the trial

In all, we raised over $100,000 – all from individual contributions.

After fees taken out by credit card processors and our fiscal sponsor, that was about $5,000 more than the total needed to pay for the court reporters.

When we originally announced this campaign, we promised to donate any extra funds to the Manning Support Network. The Support Network has decided to apply half of that money to Chelsea Manning’s legal fees during her appeal and has generously offered to donate the other half back to the Freedom of the Press Foundation so we can continue our work.

You’ve probably noticed that there were a lot of people who went out on a limb to help us – folks like Tony Rolland, Gore Brothers, Nathan Fuller, Alexa O’Brien, Forbes, the Verge, the Guardian, ARD German Radio, the twenty media organizations that signed onto a coalition letter in support of our endeavor, and the hundreds upon hundreds of people who donated to ensure we could cover the costs of the court reporters. It is their generosity and their courage that was responsible for the Manning transcripts being freely available to the public today.

  • 1.Shortly after the trial concluded, Chelsea Manning publicly acknowledge that she identifies as a woman and prefers the name “Chelsea” to “Bradley.” We respect this decision and will use it going forward when possible. However, in the transcripts her name is still written as “Bradley” for historical accuracy.
  • 2.Disclosure: I am a steering committee member of the Private Manning Support Network, and also a proud co-founder.

From the Nation: Access Blocked to Bradley Manning’s Hearing

Note: This article was originally published at the Nation, and I’m just keeping a copy here for historical purposes. Note that this was before Chelsea had come out as a transwoman.

Bans on recording devices and Internet access and other arbitrary rules are preventing the public from witnessing this historic trial.

The WikiLeaks saga is centered on issues of government transparency and accountability, but the public is being strategically denied access to the Manning hearing, one of the most important court cases in our lifetime.Twenty-four-year-old Private First Class Bradley Manning is facing life in prison or even the death penalty for leaking hundreds of thousands of documents about US wars and diplomacy to the whistleblower website WikiLeaks. Some of the documents in question are now posted online and have been the fodder for news articles and public discussion about world politics for well over a year. This case will show much about the United States’s tolerance for whistleblowers who show the country in an unflattering light. Are we a nation that tolerates criticism and values transparency? Or are we willing to crack down on whistleblowers of conscience? Unfortunately, the military is taking steps to block access by the media and the public to portions of the proceedings, robbing the world of details of this critically important trial.

No full transcript available

The details of Bradley Manning’s prosecution aren’t making their way into the public domain in large part because there is no full transcript being made public. During a recess from the hearing, I questioned a public affairs officer, who refused to provide his name, about when a transcript would be made available. He said that it would likely be three to four months—long after the media interest had faded.

Computers and recording devices banned

The government has banned all recording devices, audio or video, from the media center or the courtroom. This is particularly galling because the government has ample ability to record the proceedings in full and make them publicly available; in fact, the trial is being recorded and livecast to the media center, where reporters under the strict supervision of public affairs officers are taking frantic notes.

Journalists are forbidden to connect to the Internet, making the possibility of live tweeting and live blogging challenging. The government allowed a mere twenty members of the public into the hearing. Spectators were denied laptops, meaning the only way for the public to get notes on the pretrial hearing is by scribbling notes on paper.

Media access denied or rescinded

When Nathan Fuller applied for a press pass to attend the hearing and take notes from the media center, his request was granted—and then rescinded. Among other things, Fuller is an intern with the Bradley Manning Support Network, a coalition of individuals and organizations working to cover the financial costs of Manning’s defense and educate the public about the issues involved. On Monday, I asked the public affairs officer at the hearing what criteria were used to assess whether someone qualified as a journalist for the purposes of receiving a press pass, and he said he did not know. I asked how many other individuals had been denied press passes to the hearing, and he again replied that he didn’t know. I asked how many other individuals had received press passes only to have them rescinded and got the same non-response. He didn’t know if there was a phone number for someone who would have the answers to these questions. I asked my questions again on Tuesday, and the public affairs officer still knew nothing—except that he wouldn’t have an answer for my questions that day.

Overflow theater closed down even when people are barred from the courtroom

On the first day of the hearing, individuals not among the first twenty to arrive at the hearing were given access to a theater across the street. While recording devices were not allowed, this theater offered the flexibility to enter and leave at will. As a result, there was access to cars where laptops and cell phones were stored, which facilitated reporting. The theater also provided a way for those who were late to the hearing to be able to sit down and start watching the proceedings right away, instead of waiting in an empty trailer for an hour or more for the first recess. This is particularly important because there were long lines to have vehicles inspected to gain entrance to the base, and there was no published schedule for when the hearing would begin, making lateness a frequent occurrence.

After the second day, however, the overflow theater was closed down. I spoke to a military representative who said the theater was closed down because the courtroom wasn’t full. It is true that Saturday the courtroom was not at spectator capacity, but that was the day of the public rally protesting the prosecution of Bradley Manning, so it’s not surprising there were fewer people in the court. The courtroom was at capacity on Tuesday and two individuals who had driven in from Occupy DC were denied entrance because there were not enough available seats. Nonetheless, the military still refused to open the theater.

No accommodations for disabled and elderly access

If you’ve got a small bladder, poor hearing or can’t handle stairs, then forget about attending Manning’s trial. I was particularly sad to see famed Pentagon Papers whistleblower Daniel Ellsberg struggling to hear the proceedings. I spoke to the military police and urged them to open the public theater so that individuals like Ellsberg could sit closer to the sound system. I was rebuffed.

Access denied

Manning’s pretrial hearing is being held at Fort Meade in Maryland. Individuals who want to drive on base have to undergo a lengthy inspection of their vehicle, often waiting in line for a long period of time. And sometimes even waiting in line won’t get you in: Lt. Daniel Choi, a veteran and outspoken advocate for ending the military’s discriminatory policies toward LGBT servicemembers, was held at the entrance at length. The military personnel at the entrance to the base took issue with Lt. Choi’s military uniform and delayed his entrance to the base for some time. Though he eventually passed through security, Choi was there only briefly before being removed from the base; his uniform was ripped and his wrist injured as he was forcibly evicted. The military, which did not charge him, accused him of “heckling,” though no witnesses saw any evidence of untoward behavior on Choi’s part.

Lt. Choi spoke out against the Manning trial during an interview with Keith Oblermann. “You don’t have to be in the military to understand this is a show trial,” he said, “This is a farce of justice and being in that courtroom this weekend, I don’t think that America has had lower moments.”

The long delay at the entrance caused Choi to arrive late at the courtroom, and because the theater was closed he was unable to watch much of the proceedings.

While the documents attributed to Manning have been widely dispersed and are the subject of many news articles, the government insisted on shutting the public and the media out of large portions of the hearing. On the third day of the trial, the investigating officer decided to accommodate the prosecution’s request for a closed hearing for a portion of the next day. The investigating officer found that the information had been properly classified and that the need to maintain that classification outweighed the value of a public and open trial. But the public, who has had access to the WikiLeaks releases for well over a year, was not given an opportunity to object. The only objection raised was from the defense team of Bradley Manning, to no avail. No explanation was provided regarding what information would be reviewed in the closed portion of the trial. And notably, the investigating officer allowed “relevant government agencies” to remain even as the public was ousted, without providing any information on what agencies were considered relevant.

No media organizations have yet contested the right to have access to the closed portions of the proceedings.

Wikileaks thrown out

Among those thrown out of the courtroom during the closed portions of the hearing were attorneys for the whistleblower website WikiLeaks. WikiLeaks had petitioned for guaranteed access to the hearing, and had sent in an attorney who had the highest level of secret security clearance. The Center for Constitutional Rights, which is representing Assange and WikiLeaks, is appealing their right to access the trial. In a press release, CCR legal director Baher Azmy said, “As counsel for WikiLeaks and Julian Assange, we must be given access to these proceedings. The lack of transparency that has been a hallmark of the military’s prosecution of Private Manning to date also serves to obscure his abusive conditions of confinement.” Assange and his lawyers are also concerned about the threat of an extradition request from the United States on matters raised in Private Manning’s proceedings.

At its heart, the Bradley Manning trial is about secrecy, about understanding how our own government as a world power operates in complex international waters, about debating the sacrifices we’re willing to make to advance our interests. Whatever interests the military may have in conducting its case against Manning behind closed doors, we as a society cannot tolerate attempts to rob us of knowledge of the court proceedings. This trial will change the history of our country; I only hope we get to be in the room when it happens.