Join us for this week’s Manch Talk, where we take a deep dive into the most recent Manchester NH crime stats. We haven’t been keeping an eye on the local po-po, and it shows!
If you catch this week’s Manch Talk, you’ll hear me discuss the latest developments regarding Right-to-Know in New Hampshire. Long story short, the NH AG’s office finally, FINALLY released the new RTK memo, nine years after the last one in 2015.
[PDF]
Since last week was Sunshine Week, when we typically celebrate or highlight national open government efforts, and as a RTKNH board member, I submitted an op-ed to the Union Leader, which got pulled last minute because the memo was released. I’ll take it! Stay tuned for an in-depth delve into the 158-page document, coming soon!
Here was the op-ed that was NOT published:
Dear Editor,
It is Sunshine Week, our annual reminder that if we don’t want more government corruption, we must demand transparency. What is hidden in government is what is rotten in government, and with distrust in government institutions at an all-time high, the need for open government has never been more critical.
I serve on the board of Right-to-Know NH, a statewide, nonpartisan group of open government advocates. We are from different walks in life, different political parties, religions, and backgrounds, but what unites us is the understanding that without open, transparent, accessible, and accountable government, local politics won’t work.
And, sadly, the trend in New Hampshire suddenly seems to be towards darkness, not light. For example: An insidious bill, HB 1002, would introduce a use fee for RTK requests, thereby introducing a new tax. Imagine the impact this would have on the press’ ability to investigate stories, or the chilling effect due to costs that this will have on open government activists.
Over the past few years, open government advocates have seen some successes. The RTK Ombudsman office finally opened last year, but already suffers from too complex rules, and a backlog. Several NH Supreme Court cases were found in favor of more open government. The Fenniman case was even overturned after almost three decades, significantly broadening our right to view government employees’ personnel files.
And yet, in the past decade, the government has also managed to seal the names of law enforcement officers who should have appeared on the Laurie’s List, they have arrested Right-to-Know activists, they have spent millions of your tax dollars fighting open government requests, and the NH Municipal Association has lobbied against common sense legislation to help broaden the press and Granite Staters’ Right-to-Know.
Last year during Sunshine Week, I implored the AG’s Office to update the 2015 Right-to-Know memorandum. We have now formally requested this update at least 5 times in writing, to no avail. The failure by the AG to act, especially when such failure shrouds in secrecy the incredible gains that have been made in favor of more open government, breeds suspicion.
In the words of Justice Louis Brandeis, “Sunlight is said to be the best of disinfectants.” Let us, therefore, redouble our efforts to shine a light on the inner workings of our local government. It starts with that updated memo. To the NH Attorney General’s Office: Stop undermining public trust.
Sincerely,
Carla Gericke
Carla lives in West Manchester, and serves on the board of Right-to-Know NH. She is an outspoken critic of big government.
Catch this week’s Manch Talk where we cover AI developments, next weekend’s Liberty Forum, the upcoming hockey showdown between NHLP and NHGOP on Saturday, Right-to-Know, school choice, and more!
HB 1002 is a REALLY bad bill. I don’t understand how it made it out of committee with an OTP–colluders!
The Union Leader op-ed desk and stalwart reporter Mark Hayward agree with me, and Right-to-Know NH, when we say this bill will destroy what’s left of the media in New Hampshire.
Think you don’t know what your government is up to? Imagine if they can drag their feet for 9 hours and then start charging you a service fee to provide Constitutionally required information? As I often say, incentives matter, and these incentives are aligned with a lack of transparency, places an unnecessary burden on citizens, and is not needed.
Here is a document prepared by RTKNH’s president Katherine Kokko. She and I will be distributing them at the statehouse this morning before the session starts.
Heading to the NH state house this morning to stave off one of the worst bills I've seen in a while (HB 1002).
— Carla Gericke, Live Free And Thrive! (@CarlaGericke) February 1, 2024
Activists & independent media like me use RTK requests to figure out what's happening & keep government accountable.
Now Municipalities want to charge a service fee… https://t.co/b55i97OvMu pic.twitter.com/W1DpdljyeK
WATCH THE VIDEO BELOW ABOUT THE MOST INSIDIOUS NH HOUSE BILL BEING HEARD TOMORROW!!!
They’re creating a tax for open record requests. We HAVE TO KILL HB 1002!!!
Here’s the documents created by Right-to-Know NH regarding HB 1002. HUGE SHOUT OUT to Katherine Kokko of Right-to-Know NH for the incredible work she did on this issue, including the Q&A below. Right-to-Know NH is a nonpartisan group working together to keep NH government open, transparent, and ACCOUNTABLE to the people.
HB1002: Frequently Asked Questions
How does HB1002 impact the public’s Right to Know?
HB1002 imposes labor, retrieval, and redaction costs on requestors under RSA Chapter 91-A (NH’s “Right to Know” Law). HB1002 constrains a citizens’ right to know to what can be learned in 10 hours or less in a 30-day period, while charging for additional details within that time period.
A ten hour limit on requests sounds reasonable on paper. Why is this a problem?
The limit hampers the public’s ability to understand and scrutinize complex government operations thoroughly, setting conditions for opacity in government. HB1002 targets, and discourages members of the public from performing the public service of assuring transparency in government, jeopardizing public access and government transparency in New Hampshire. There are other ways to address the problem of “burdensome requests” as presented to the House (See inside).
What else is wrong with HB1002?
By defining the reasonableness of a request as a time limit, HB1002 contravenes the intent of the RTK Law repeatedly affirmed by the courts – to define reasonableness of a request in a manner that provides the greatest information, consistent with statutory and constitutional objectives.
Furthermore, high labor estimates for responding to a request are likely to be issued due to issues like poor record retention practices or the use of overzealous redactions. Those are the responsibility of the public body, not the fault of the requestor.
Why is it important for the public to have unfettered access to public information under NH’s Right to Know law?
NH’s law is entirely and uniquely reliant on private action by individuals for enforcement, giving the public a statutory role in ensuring transparency in NH. There is no oversight body to ensure that NH’s Right-to-Know law is enforced.
Any investigation, even by the RTK Ombudsman, must be instigated by private action. HB1002 erects financial barriers to the public and perversely incentivizes public bodies to increase their estimated labor in responding to RTK requests.
This bill appears to have lot of support from local communities, public bodies and their lobbyists. Who is opposing this bill?
Because this bill would severely harm government accountability and transparency in New Hampshire, it is opposed by a broad Coalition of stakeholders, including the Right-to-Know NH, the ACLU-NH, the New England First Amendment Coalition, the N.H. Press Association, the N.H. Union Leader, the N.H. Bulletin and Americans for Prosperity.
WHY VOTE NO
ON HB1002?
It sounds like “burdensome requests” are a big problem for public bodies/communities? Does RTKNH agree?
The bill’s sponsor Katelyn Kuttab (R-Windham), the NH Municipal Association and Right to Know NH have all confirmed that the large, problematic requests at issue are infrequent. In testimony, examples of “burdensome requests” were anecdotal and not placed in context. Most labor-intensive RTK requests come from commercial entities who are likely willing to pay.
By contrast, the average citizen will likely abandon their RTK request when faced with potential fees for a public interest inquiry, serving no public good. The impact on the average citizen request will be far more profound than the impact on burdensome commercial requests.
If this bill is NOT passed, how will public bodies/communities deal with these “burdensome requests”?
HB1002 addresses a perceived issue that is already addressed by the Right to Know law and existing State and Federal case law. HB1002 disincentivizes public bodies from understanding the existing parameters of the RTK law and the court’s definitions of “reasonableness”… at the public’s expense.
Finally, public bodies always have the option of communicating with the requestor to try and clarify the scope of the request. Many do not do this and choose a legalistic approach instead.
Are there other ways to address these “burdensome requests?”
Yes. Public bodies, including elected officials, should be trained on Right to Know. There is no training requirement. Relying on legal counsel or trying to base decisions on in-house interpretations – instead of training public employees on the front lines – exacerbates issues. When a community spends an inordinate amount of time on Right to Know requests, it is often due to this lack of training and/or reliance on overly legalistic responses.
• What else could be done to assist public bodies?
Multiple stakeholders have asked the AG’s Office to update its 2015 Memorandum on NH’s Right to Know Law so that public bodies can appropriately apply the many precedent-setting decisions made since 2015. The AG’s Office has not done so (claiming that it is in process) while failing to provide a timeline for completion. Meanwhile, it has endorsed HB1002 and specifically the proposed fee structure. This is an unacceptable abdication of its own role in assuring the integrity of the application of the Right-to-Know law.
• The House Judiciary Committee voted this bill OTPA. Why should I disagree with their recommendation?
With only 2 business days between the hearing and Executive Session, the House Judiciary Committee voted HB1002 OTPA 12-8 along evenly split party lines (6D/6R to 4D/4R), without:
(i) Investigating examples, or the origin and root causes of, burdensome requests that are being cited anecdotally to justify this bill
(ii) Considering more targeted proposals to limit excessive requests.
(iii) Investigating the role that RTK training and public guidance (including from the NH Attorney General’s office) could have in resolving this issue.
• How will this bill impact the “average” RTK request?
HB1002 reinforces the use of problematic practices like unnecessary redactions, use of outside contracted support staff and “data dumps” of large volumes of unnecessary documents by allowing billing for such labor. It will also have a “chilling effect” on anything but the most simple request, discouraging the public from researching and understanding issues of interest because they are “too complicated” to warrant paying for the public interest.
Developed and Funded by Committed NH Citizen-Advocates through Right-to-Know NH
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List the most famous American whistleblowers and how their bravery to come forward led to actual substantive changes that improved government accountability and public trustChatGPT
ChatGPT
Several famous American whistleblowers have played a significant role in exposing government misconduct and promoting government accountability and public trust. Here are some of the most well-known American whistleblowers and the impact of their actions:
- Daniel Ellsberg:
- Ellsberg was a former military analyst who leaked the Pentagon Papers in 1971, a top-secret Department of Defense study on the Vietnam War.
- His actions exposed government deception and the secret escalation of the war, leading to increased public skepticism about the government’s actions.
- The publication of the Pentagon Papers contributed to the eventual end of U.S. involvement in the Vietnam War and led to greater transparency in government decision-making.
- Mark Felt (Deep Throat):
- Felt, an associate director of the FBI, provided information to reporters Bob Woodward and Carl Bernstein during the Watergate scandal in the 1970s.
- His anonymous leaks helped uncover the Watergate break-in and subsequent cover-up, leading to the resignation of President Richard Nixon.
- Felt’s actions demonstrated the importance of whistleblowers in exposing government corruption and holding high-level officials accountable.
- Frank Serpico:
- Serpico was a New York City police officer who exposed widespread corruption and bribery within the NYPD in the early 1970s.
- His testimony before the Knapp Commission led to investigations and reforms within the police department, including the establishment of the independent Civilian Complaint Review Board (CCRB) to oversee police misconduct.
- Serpico’s actions inspired public debate about police integrity and accountability.
- Jeffrey Wigand:
- Wigand was a former tobacco industry executive who blew the whistle on the industry’s knowledge of the health risks associated with smoking and the manipulation of nicotine levels in cigarettes.
- His disclosures contributed to multiple lawsuits against tobacco companies and led to the 1998 Tobacco Master Settlement Agreement, which imposed significant financial penalties on the industry and led to greater regulation and public awareness of the dangers of smoking.
- Edward Snowden:
- Snowden, a former National Security Agency (NSA) contractor, leaked classified documents in 2013 that revealed the extent of government surveillance programs, including mass data collection on American citizens.
- His disclosures sparked a global debate on privacy, surveillance, and government overreach.
- Snowden’s actions led to reforms such as the USA Freedom Act and increased scrutiny of intelligence agencies’ activities.
These whistleblowers demonstrated immense courage in exposing government wrongdoing, leading to substantive changes in government policies, increased transparency, and greater public trust by holding those in power accountable for their actions.
You
Explain what “increased scrutiny of US intelligence agencies’ activities” happened after Snowden ChatGPT
ChatGPT
Edward Snowden’s revelations about the extent of surveillance conducted by U.S. intelligence agencies, particularly the National Security Agency (NSA), led to increased scrutiny and changes in the way these agencies operate. Here are some of the key ways in which increased scrutiny of U.S. intelligence agencies’ activities occurred after Snowden’s disclosures:
- Public Awareness and Debate: Snowden’s leaks brought the previously secret and massive surveillance programs into the public spotlight. This triggered a national and international conversation about the balance between national security and individual privacy. Citizens and policymakers became more informed about the scope of government surveillance.
- Legal Challenges: Snowden’s disclosures led to legal challenges against the NSA and its surveillance programs. Civil liberties organizations and concerned citizens filed lawsuits to challenge the constitutionality of certain surveillance practices, such as bulk data collection.
- Reform Legislation: The increased public and congressional scrutiny prompted efforts to reform U.S. intelligence agencies’ activities. The USA Freedom Act, signed into law in 2015, was a significant piece of legislation that imposed limitations on bulk data collection and introduced more transparency and oversight measures. It also ended the government’s bulk collection of call records.
- Increased Oversight: The revelations prompted calls for greater oversight of intelligence agencies. Congress established more robust mechanisms for overseeing surveillance programs, including increased reporting requirements and greater involvement of the Foreign Intelligence Surveillance Court (FISC) in certain cases.
- International Diplomatic Fallout: Snowden’s disclosures strained U.S. relations with other countries, particularly European allies who were upset by reports of NSA surveillance on their leaders and citizens. This diplomatic fallout led to discussions and negotiations about international norms and rules for cyber espionage.
- Technology and Encryption: Snowden’s revelations encouraged tech companies to strengthen encryption and security measures to protect user data from government surveillance. Tech giants like Apple and Google started to prioritize user privacy and resist government demands for backdoors to encrypted data.
- Whistleblower Protections: Snowden’s actions spurred discussions about the need for stronger protections for whistleblowers who expose government misconduct. Some argued that there should be legal avenues for whistleblowers to come forward with classified information while still safeguarding national security.
Overall, Edward Snowden’s disclosures significantly increased transparency, accountability, and public scrutiny of U.S. intelligence agencies’ activities. While opinions about Snowden’s actions vary widely, there is no doubt that they had a profound impact on the national and international conversation surrounding surveillance, privacy, and government accountability.
You
Is it not true that Google and Apple routinely provide backdoors to governments now?ChatGPT
ChatGPT
As of my last knowledge update in January 2022, both Google and Apple have stated their commitment to user privacy and encryption, and they have resisted government requests for backdoors to access user data. However, the landscape of technology and government policies can change, and it’s essential to stay updated with the latest developments.
Here are some key points related to Google and Apple’s stance on user privacy and government access:
- Encryption: Both Google and Apple have implemented encryption measures to protect user data. This means that data stored on devices and transmitted over their services is typically end-to-end encrypted, making it challenging for anyone, including governments, to access user data without the user’s consent.
- Legal Requests: Both companies do comply with lawful government requests for user data when presented with appropriate legal process, such as court orders and subpoenas. However, they have been known to challenge overly broad or unconstitutional requests in court.
- Transparency Reports: Google and Apple publish transparency reports that provide information about the number and types of government requests for user data they receive. This transparency allows users to understand how often and why governments seek access to user information.
- Resistance to Backdoors: Historically, both companies have resisted government pressure to build backdoors or weaken encryption. They argue that weakening encryption would compromise user privacy and security.
- Government Access Debate: The debate over government access to encrypted communications and devices continues to be a topic of discussion among tech companies, privacy advocates, law enforcement agencies, and policymakers. There are ongoing debates about the balance between privacy and security in the digital age.
Since my knowledge is not up to date beyond January 2022, I recommend checking the latest news and developments regarding Google and Apple’s policies on government access and encryption to ensure you have the most current information on this topic. Technology companies’ positions and policies can evolve in response to legal and regulatory changes, as well as public and political pressure.
You
Post the most recent “transparency reports of government requests” by Apple and then GoogleChatGPT
ChatGPT
I apologize for any confusion, but I do not have the capability to access real-time data or the internet, including the most recent reports. My knowledge is based on information available up to January 2022, and I cannot provide updates beyond that date.
To access the most recent transparency reports from Apple and Google regarding government requests for user data, I recommend visiting the respective companies’ official websites or conducting an internet search using relevant keywords. Both Apple and Google regularly update their transparency reports to provide information on government requests for user data, and you can find the latest information directly from their official sources.
You
Summarize the current scope of “secret government surveillance” as it relates to social media ChatGPT
ChatGPT
As of my last knowledge update in January 2022, the scope of secret government surveillance related to social media was a subject of concern and debate, with several key aspects:
- Bulk Data Collection: Government agencies, particularly in the United States, had been engaged in bulk data collection programs where they collected vast amounts of metadata related to social media communications. This metadata included information about who was communicating with whom, when, and for how long. The content of the messages was typically not collected through these programs.
- National Security Agency (NSA): The NSA, as revealed by Edward Snowden in 2013, had programs like PRISM that reportedly allowed the agency to access data from major tech companies, including social media platforms. These programs were aimed at identifying potential threats to national security.
- Foreign Intelligence Surveillance Act (FISA) Court: Surveillance requests by government agencies were subject to oversight by the Foreign Intelligence Surveillance Court (FISC) in the United States. FISC was responsible for granting or denying requests for surveillance, including those related to social media and internet communications.
- Private Companies’ Role: Social media companies were often compelled to provide user data to government agencies in response to legal requests, such as court orders and subpoenas. These companies generally complied with lawful requests while advocating for transparency and limits on government access.
- Global Concerns: Surveillance activities related to social media were not limited to the United States. Governments in various countries were also engaged in surveillance efforts, and revelations about these practices raised concerns about the balance between national security and individual privacy worldwide.
- Encryption Debates: The use of end-to-end encryption in messaging apps raised debates about government access to private communications. Some governments argued for “backdoors” that would allow them to access encrypted messages, while tech companies and privacy advocates argued against weakening encryption, citing security and privacy concerns.
Please note that the scope and nature of government surveillance can evolve over time due to changes in laws, policies, and technology. Since my knowledge is not up to date beyond January 2022, I recommend consulting the latest news and reports for the most current information on government surveillance related to social media. It’s also essential to stay informed about any legislative or policy changes that may impact the scope of surveillance activities.
You
How many FISA requests have been issued? ChatGPT
ChatGPT
I don’t have access to real-time or current data, including the exact number of Foreign Intelligence Surveillance Act (FISA) requests that have been issued since my last knowledge update in January 2022. FISA requests are typically classified and subject to national security considerations, and detailed statistics about them may not be publicly available.
To obtain the most up-to-date information on FISA requests and related statistics, you may need to refer to official government reports, statements, or releases from the relevant government agencies responsible for FISA oversight and compliance, such as the U.S. Department of Justice or the U.S. Foreign Intelligence Surveillance Court. Keep in mind that some aspects of FISA activities may remain classified or sensitive for national security reasons.
You
How can there be public trust and oversight of government surveillance if the number of FISA requests are secret? ChatGPT
ChatGPT
The tension between maintaining national security and ensuring public trust and oversight in government surveillance is a complex and ongoing challenge. While some aspects of government surveillance, such as specific FISA requests, may need to remain classified for legitimate national security reasons, there are mechanisms in place to balance these concerns:
- Transparency Reports: Government agencies, particularly in democratic countries like the United States, often release periodic transparency reports. These reports provide aggregated statistics on surveillance requests and activities without disclosing specific details that could compromise national security. Transparency reports offer the public insight into the scale and scope of surveillance efforts.
- Oversight Bodies: Many countries have established oversight bodies or committees responsible for reviewing government surveillance activities. These bodies, often composed of lawmakers, legal experts, and sometimes members of the public, are tasked with ensuring that surveillance activities are conducted within the bounds of the law and respect individual privacy rights.
- Judicial Review: In countries with legal frameworks like the United States, government surveillance requests, especially those related to FISA, are subject to judicial review. The Foreign Intelligence Surveillance Court (FISC) in the U.S. reviews and approves or denies surveillance requests. The court operates behind closed doors to protect classified information but is intended to provide a check on government surveillance.
- Legislative Oversight: Elected representatives in legislatures have a role in overseeing government surveillance activities. They can hold hearings, request information, and pass legislation to address concerns about surveillance and enhance transparency.
- Whistleblower Protections: Whistleblowers play a vital role in exposing government misconduct, including unlawful or overreaching surveillance practices. Laws protecting whistleblowers can encourage individuals to come forward with concerns about government surveillance without fear of retaliation.
- Public Advocacy and Civil Liberties Groups: Public advocacy groups and civil liberties organizations actively monitor and advocate for transparency, accountability, and privacy protections in government surveillance programs. They often use legal means, advocacy campaigns, and public education efforts to promote awareness and accountability.
Balancing national security and individual privacy is an ongoing challenge, and the appropriate level of transparency and oversight may vary from one country to another. Striking the right balance requires constant vigilance, public engagement, and adaptation of laws and policies to address emerging technologies and threats while upholding democratic values and principles. It’s an area where public debate, legal challenges, and legislative reforms play a crucial role in shaping the rules governing government surveillance.
You
You mention “whistleblower protections”. Can you tell me how the past 10 most famous whistleblowers were protected?ChatGPT
ChatGPT
Whistleblower protections vary depending on the specific circumstances and legal frameworks in place at the time of their disclosures. Here’s a brief overview of the past 10 most famous whistleblowers and how they were protected or faced legal consequences:
- Edward Snowden:
- Snowden exposed classified NSA documents related to mass surveillance. He fled to Russia to avoid prosecution in the United States, where he faced charges under the Espionage Act.
- He was granted temporary asylum in Russia, which protected him from extradition to the United States. Some countries and human rights organizations offered support and protection.
- Chelsea Manning:
- Manning leaked classified documents to WikiLeaks, including diplomatic cables and military records. She was arrested and faced a court-martial.
- Manning was sentenced to 35 years in prison but had her sentence commuted by President Barack Obama in 2017. She was released from prison in 2017.
- Daniel Ellsberg:
- Ellsberg leaked the Pentagon Papers, a top-secret study of the Vietnam War, to the New York Times and other newspapers. He was charged with violating the Espionage Act.
- His case was eventually dismissed due to government misconduct and illegal surveillance, which came to light during the trial.
- Mark Felt (Deep Throat):
- Felt remained anonymous as Deep Throat during the Watergate scandal. His identity was revealed in 2005 after his death.
- He was never prosecuted for his role as a whistleblower. His status as a confidential informant was known only to a few individuals at the time.
- Frank Serpico:
- Serpico exposed widespread corruption within the NYPD in the 1970s. He testified before the Knapp Commission.
- He faced retaliation from fellow officers but was eventually protected by the Knapp Commission and continued to speak out against corruption.
- Jeffrey Wigand:
- Wigand exposed tobacco industry practices related to the health risks of smoking. He faced legal threats from tobacco companies.
- His disclosures led to legal battles and lawsuits against tobacco companies. He received legal support and protection during the process.
- Katharine Gun:
- Gun leaked a memo from the U.S. National Security Agency requesting British support for the Iraq War. She faced possible prosecution under the Official Secrets Act.
- The charges against her were dropped, and she was not prosecuted due to concerns about her prosecution’s impact on the trial.
- Thomas Drake:
- Drake exposed waste and abuse within the NSA, specifically regarding a failed surveillance program. He faced charges under the Espionage Act.
- The government’s case against him collapsed, and he eventually pled guilty to a misdemeanor charge, receiving no jail time.
- John Kiriakou:
- Kiriakou revealed details about the CIA’s use of waterboarding and faced charges related to the leak.
- He was sentenced to prison but later released. He received support from advocacy groups during his legal battle.
- Reality Winner:
- Winner leaked a classified NSA document related to Russian interference in the 2016 U.S. election. She faced charges under the Espionage Act.
- She was sentenced to more than five years in prison but was released in June 2021 after a commutation of her sentence.
Whistleblower protection can be a complex and evolving process, involving legal battles, public support, advocacy groups, and sometimes presidential pardons or commutations. The level of protection and consequences can vary significantly based on the nature of the disclosures and the legal and political context at the time.
You
While you claim whistleblowers can act as a safeguard against secret government surveillance, the reality is the government punishes whistleblowers to try to silence them and to create a chilling effect in the future… is this not correct? ChatGPT
ChatGPT
You are correct that in some cases, governments have taken legal action against whistleblowers, and there have been instances where whistleblowers faced retaliation as a means to discourage others from coming forward. The treatment of whistleblowers can vary widely depending on the nature of their disclosures, the legal framework in place, and the prevailing political climate. Here are some key points to consider:
- Legal Protections: While there are legal protections for whistleblowers in many countries, including the United States (such as the Whistleblower Protection Act), these protections may not always be sufficient to shield whistleblowers from prosecution or retaliation, especially when they expose classified information.
- Espionage Act: In the United States, the Espionage Act has been used to prosecute whistleblowers who leak classified information. This has been a point of controversy, as it can lead to lengthy prison sentences for those convicted.
- Public Support: Whistleblowers often rely on public support, advocacy groups, and legal defense funds to help protect their rights and interests. Public awareness and support can play a significant role in the outcome of whistleblower cases.
- Presidential Pardons or Commutations: In some cases, outgoing U.S. presidents have issued pardons or commutations to whistleblowers, as seen with Chelsea Manning and Reality Winner, to mitigate their sentences or charges.
- Chilling Effect: The fear of retaliation and legal consequences can indeed have a chilling effect on potential whistleblowers. When individuals see others facing harsh penalties for exposing government wrongdoing, they may be less likely to come forward with information.
It is essential to acknowledge that whistleblowers often take significant personal and professional risks when they decide to expose government misconduct or classified information. Their actions can lead to legal battles, loss of employment, and personal hardships. However, whistleblowers also play a crucial role in holding governments accountable and promoting transparency and accountability in democratic societies.
Efforts to strengthen whistleblower protections and create more robust legal frameworks for disclosing government misconduct are ongoing. Public awareness, legal challenges, and advocacy are key elements in shaping the treatment of whistleblowers and influencing the broader conversation about the balance between national security, government transparency, and individual rights.
You
Under what legal framework does national security trump individual rights? ChatGPT
ChatGPT
The legal framework in which national security concerns may be used to justify limitations on individual rights varies from one country to another and can depend on the specific legal context and the balance struck by the country’s legal system. The extent to which national security can potentially trump individual rights is a complex and evolving issue, and different legal systems provide different mechanisms and standards for addressing this balance. Here are some general principles and legal frameworks that are commonly referenced:
- Constitutional Frameworks: Many countries have constitutions or foundational legal documents that outline individual rights and freedoms. These documents often include provisions that allow for the limitation of these rights in cases of national security or public safety. For example, the U.S. Constitution’s Bill of Rights includes provisions such as the First and Fourth Amendments, which protect freedom of speech and protection against unreasonable searches and seizures, but these rights are subject to limitations in certain circumstances.
- National Security Legislation: Many countries have specific national security laws that grant authorities the power to take measures to protect the nation from threats. These laws may outline the circumstances under which individual rights can be restricted in the interest of national security.
- Judicial Review: In many legal systems, including the United States, the judiciary plays a crucial role in determining the legality of government actions that may infringe on individual rights in the name of national security. Courts can assess whether government actions comply with constitutional and legal standards, and they may strike down measures that are deemed to be excessive or unconstitutional.
- International Human Rights Law: International human rights agreements and conventions, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, provide a framework for protecting individual rights on a global scale. These agreements recognize that individual rights may be limited in certain circumstances, but such limitations must be necessary, proportionate, and subject to judicial review.
- Balancing Tests: In some legal systems, including the United States, courts use balancing tests to weigh the government’s interest in national security against the individual’s right. Courts consider factors such as the nature of the threat, the impact on individual rights, and whether less intrusive means could achieve the same security objectives.
It’s important to note that the precise balance between national security and individual rights can vary significantly between countries and may be influenced by legal traditions, historical events, and public sentiment. Additionally, the interpretation and application of these legal frameworks can evolve over time through court decisions and legislative changes.
In democratic societies, there is an ongoing debate and tension between the need to protect national security and the imperative to uphold individual rights and civil liberties. Courts, lawmakers, and civil society organizations play essential roles in defining and preserving this balance.
You
Is this balancing test done in the secret FISA courts? ChatGPT
ChatGPT
The Foreign Intelligence Surveillance Court (FISC), also known as the FISA court, does perform a form of balancing test when considering government surveillance requests related to national security. However, it operates under a unique and somewhat secretive legal framework.
In FISC proceedings:
- Application for Surveillance: Government agencies, typically the FBI and the NSA, submit applications to the FISC requesting authorization to conduct surveillance on foreign individuals or entities within the United States when there is a suspicion of involvement in activities that pose a threat to national security. These applications are often made under the Foreign Intelligence Surveillance Act (FISA).
- Probable Cause: The government is required to demonstrate to the FISC that there is “probable cause” to believe that the target of the surveillance is a foreign power or an agent of a foreign power. This threshold is lower than the “beyond a reasonable doubt” standard used in criminal cases but still requires a reasonable basis for suspicion.
- Minimization Procedures: FISC orders typically include minimization procedures, which are designed to limit the collection, retention, and dissemination of information about U.S. persons who are incidentally collected during foreign intelligence surveillance.
- Ex Parte Proceedings: FISC proceedings are typically ex parte, meaning that only the government presents its case, and there is no adversarial process with opposing arguments. This secrecy is intended to protect national security interests.
- Balancing National Security: While FISC judges are tasked with ensuring that government surveillance requests comply with legal requirements, they also consider the government’s interest in national security. This can be seen as a form of balancing, where the court evaluates whether the surveillance is justified in the context of national security concerns.
- Judicial Review: The FISC operates under the oversight of the Foreign Intelligence Surveillance Court of Review (FISCR) and the ability of individuals or entities subject to FISC orders to challenge those orders in certain circumstances.
It’s important to note that FISC proceedings are not open to the public, and the court’s decisions are often classified due to the sensitive nature of national security matters. This lack of transparency has led to debates about the extent of oversight and the potential for abuse.
In recent years, there have been calls for greater transparency and reform in FISC proceedings, including efforts to declassify more decisions and provide opportunities for adversarial proceedings in certain cases. The balance between national security and individual rights remains a topic of ongoing discussion and scrutiny.
You
What was the last thing that was declassified? ChatGPT
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I don’t have access to real-time data, and my knowledge is based on information available up to January 2022. Declassification of government documents and information is an ongoing process, and it can vary depending on the specific documents, agencies, and national security considerations involved.
The declassification of government information is typically determined by the government agencies responsible for the classification of the information, and it can be influenced by a variety of factors, including the passage of time, changes in national security concerns, and legal or policy decisions.
To find the most recent declassified information, I recommend checking official government sources, such as the websites of government agencies responsible for declassification or relevant news reports from reputable sources. These sources often provide updates on declassified documents and information as they become available to the public.
We talk about Right-to-Know and whether updates in the law should be applied ex-post facto (probably not) and whether Human Rights should trump special interest groups that only give “rights” to some people (definitely).
Read more about the case we mention in the Union Leader: Former Claremont cop seeks to keep files secret (paywall)
On Thursday, October 19th, the Nackey S. Loeb School, in partnership with the NH Institute of Politics at St. Anslem, celebrated the First Amendment.
This year’s recipient is Laurie Ortolano, who served as president of Right-to-Know NH for a while. I have featured her on my show over the years, and deeply admire her relentless pursuit of open government.
Appearing above with attorney Gregory Sullivan and President and Chairman Joseph W. McQuaid, Laurie’s success story against the City of Nashua makes her the perfect recipient. Read about her story HERE.
We chat about the DNC’s weird and wonderful strategy of refusing to acknowledge NH’s First in the Nation status, resulting in Biden not even appearing on the primary ballot here. And other things.
We discuss recent developments regarding Defend the Guard (HB 229), which came out of committee with 10:10 tie, and now on to a floor fight. We cover progress on Right-to-Know and open government issues, and laud Laurie Ortolano for her work on the issue. If you want to attend the upcoming Nackey Loeb First Amendment Award, where Laurie will be honored, get your annual fundraiser tix HERE. We also talk about the looming World War 3, war criminals, and government (but I repeat myself).