Facing Surveillance and National Security as a Member of the OGP

As a co-founder of the Open Government Partnership, the United States is perfectly placed to model open government’s potential and to set a high bar of ambition for member countries’ action plans. The US’ plans, successes, failures, and neglects are placed in a glaring spotlight. A statement of concern addressed to the new OGP co-Chairs from more than 100 civil society organizations from across the globe called out a significant threat to open government found in many OGP member countries: the secret surveillance of the communications of millions.

While the statement encourages all OGP countries to take concrete steps towards injecting transparency and accountability into its national security surveillance programs, the issue resonates especially clear in the US – where revelations have shown that the National Security Agency’s surveillance programs were much more broad and extensive than was believed to be allowed under the law. These revelations of mass surveillance are a symptomatic of a national security community prone to over-secrecy and oversight imbalanced against the greater public interest. For the US to truly be a leader in the open government movement, the government must embrace the central principle of the OGP and learn from the expertise of others.

One place to start would be to formally embrace the Tshwane Principles on National Security and the Right to Information, which provide guidance to governments on how to strike a balance between the public’s right to know and the national security sector’s need for secrecy. The principles draw upon international law, national best practices and standards, and the expertise of many to define the essential rules for the protection and disclosure of national security information.

The principles emphasize the importance of protections for whistleblowers in the public sector and the necessity of narrowly tailored exceptions to public disclosure. They also assert that the public has a right to know about systems of surveillance.  As a whole, they fill the most notable absences in the US’ discussions about open government—secret law, leaks of classified information, and the protection of journalists. A resolution adopted by the Parliamentary Assembly of the Council of Europe encouraged country members to consider the principles in legislation and practice.

As the US implements its National Action Plan over the next two years, it should take both the letter and spirit of its commitment to the OGP into account and bring transparency to the national security sector, most urgently to surveillance practices. We encourage the Administration to embrace the letter and the spirit of the Tshwane Principles.