The New Ambiguity of “Open Government”

In all parts of the world, we see the promise of innovation to make government more open and accountable.  And now, we must build on that progress.  And when we gather back here [in 2011], we should bring specific commitments to promote transparency; to fight corruption; to energize civic engagement; and to leverage new technologies so that we strengthen the foundation of freedom in our own countries, while living up to ideals that can light the world.107[9]

Following up on this idea, the U.S. State Department organized a series of meetings leading to what became the multilateral Open Government Partnership (OGP).108[10]  As conditions of entry into the OGP, prospective member countries are required to meet a minimum set of standards that are based on traditional contours of government accountability: timely publication of essential budget documents, an “access-to-information” law that allows the public to obtain key government information, anticorruption disclosure requirements for public officials, and measures to promote citizen participation and engagement.109[11]  These fac­tors are fundamentally political, so the “open government” goals of the OGP initially appear to be centered on public accountability.

However, the Open Government Declaration that OGP member countries sign takes a broader approach toward “openness,” as signatories commit to “seeking ways to make their governments more transparent, responsive, accountable, and effective.”110[12]  In addition to transparency and accountability, OGP member countries promise to “uphold the value of openness in our engagement with citi­zens to improve services, manage public resources, promote innovation, and create safer communities.”111[13]  Thus, the stated goals of the OGP include making gov­ernments both more efficient and more accountable, and it remains to be seen how much focus each of these disparate goals will receive.  By casting a wide net, the OGP has received the “open government” pledges of more than 55 countries,112[14] including historically closed regimes like Russia.113[15]  The practical impact of such pledges remains to be seen.

The framing value of “open government” has not gone unnoticed in the pri­vate sector, either: A growing list of companies have repackaged their gov­ernment-oriented information technology products under this attractive new label.  Microsoft, for example, has created an “Open Government Data Initiative,” which promotes the use of Microsoft’s Windows Azure online platform as a tech­nol­ogical underpinning for open data efforts.114[16]  Adobe is best known in the government data context as the creator of the PDF document format, which is the baseline digital format for scanned paper documents (and which, like paper, tends to be difficult for downstream innovators to reuse).  Notwithstanding the fru­strations associated with the PDF format, however, the company undertook a major federal government marketing campaign in 2009 under the tagline “Adobe Opens Up,” triggering consternation among some activists.115[17]  One company, Socrata, has even dedicated itself exclusively to the governmental open data mar­ket, with a “Customer Spotlight” on its website that touts its product’s adop­tion by, Medicare, the State of Oregon, and the cities of Chicago and Seattle.116[18]  These businesses have an incentive to sell open data technologies for the broadest range of governmental uses; their decision to brand their efforts in terms of “open government” is powerful evidence of how vague the term has become.

C.        Assessing the Merger

Taken together, these developments have caused a major change in the concep­tual landscape: “Open government” policies no longer refer to those that only promote accountability.  New modes of citizen engagement and new effi­ciencies in government services now share the spotlight with the older goal of governmental accountability, which once had this felicitous phrase all to itself.

The shift has real-world consequences, for good and for ill: Policies that encourage open government now promote a broader range of good developments, while policies that require open government have become more permissive.  A gov­ernment can now fulfill its commitment to be more “open” in a wider variety of ways, which makes such a promise less concrete than it used to be.  Whether used as a campaign slogan, in a speech or policy brief, or in a binding national or international policy instrument, the phrase “open government” no longer has the clarity it once had.  Existing documents and historical arguments that refer to open government may have lost some of their precision, becoming more ambiguous in retrospect than they were when first authored.

This new ambiguity might be helpful: A government could commit to an open data program for economic reasons—creating, say, a new online clea­ringhouse for public contracting opportunities—only to discover that the same systems make it easier for observers to document and rectify corruption.  In any case, there is much to like about economic opportunity, innovation, and effi­ciency, and a conve­nient label could be a good way of promoting them all.  Also, the new breadth of the “open government” label creates a natural cognitive association between civic accountability and the internet, which may be for the best.  Accoun­tability policies that embrace the internet are often a great deal more effective than those that do not.  (It might even make sense to say that if a government is not transparent through the internet, it is effectively not transparent at all.117[19])

But this shift might also allow government officials to placate the public’s appetite for accountability by providing less nourishing, politically low-impact substitutes.  If the less specific idea of “open government” displaces accountability as the conceptual focus of public reform efforts, less accountability may be achieved.118[20]

In April 2011, in response to criticism that its Open Government Initiative was not doing enough for transparency and accountability, the Obama admin­istration launched a new site on “Good Government.”119[21]  The new site focuses on harder-edged issues like shutting down superfluous federal buildings, publi­cizing the White House visitor logs, and strengthening ethics rules that restrict the lobbying activities of former administration staff.

Meanwhile, the Open Government Initiative and appear to be focusing more and more on technological innovation and service delivery.  Beth Noveck, who launched and led the program as the U.S. Deputy Chief Technology Officer (CTO) for Open Government, has returned to private life; her successor, Chris Vein, is described instead as the Deputy CTO for Government Innovation, a title seemingly more appropriate to’s accomplishments.120[22]

Noveck herself now regrets the decision to adopt “open government” as the umbrella term for internet technologies’ transformative potential in the public sector:

[T]he White House Open Government Initiative that I directed and the Open Government Directive . . . were never exclusively about making transparent information about the workings of government. . . .
. . . .
In retrospect, “open government” was a bad choice.  It has generated too much confusion.  Many people, even in the White House, still assume that open government means transparency about government.121[23]

Instead, she writes, the term was meant to be “a shorthand for open innovation or the idea that working in a transparent, participatory, and collaborative fashion helps improve performance, inform decisionmaking, encourage entrepre­neurship, and solve problems more effectively.  By working together as [a] team with government in [a] productive fashion, the public can . . . help to foster accounta­bility.”122[24]  She suggests that the new White House structure, with separate focuses for transparency and for public sector innovation, may be more effective.123[25]

Notwithstanding a possible change of heart at the White House, however, the ambiguity of open government remains alive and well in the international sphere.  In some foreign countries, the need for public accountability is far more acute, and the opportunity cost of deprioritizing it may be far greater.  One of the clearest statements of this view comes from Nathaniel Heller, who directs an NGO called Global Integrity and was a key participant in the creation of the Open Government Partnership.  He raised the question after Kenya launched an open data website:

The obvious explanation (in my mind) for why “open data” gets so much attention in the context of “open government” is that it is the sexiest, flashiest reform of the bunch.  It’s much cooler (and frankly less politically controversial) for any government to put government health databases online . . . than it is for the same government to provide greater transparency around the financing of political parties in the country. . . .
. . . [O]pen data [may provide] an easy way out for some governments to avoid the much harder, and likely more transformative, open government reforms that should probably be higher up on their lists. . . .
. . . [W]hen I see the Kenyan government’s new open data portal . . . I can only wonder whether the time, expenses, and political capital devoted to building that website were really the best uses of resources.  To vastly understate the problem, Kenya has a range of governance and open government challenges that go far beyond the lack of a website where citizens (many of whom are not online) can chart government datasets.124[26]

The common thread to these observations is that “open government” is vogue but vague, an agreeable-sounding term with an amorphous meaning.  We need better conceptual and linguistic tools, both for keeping governments honest and for exploring the transformative potential of information technologies in civic life.

To some ears, the idea of “open government data” has also developed a more threatening cast.  Wikileaks, first launched in 2008, has created what some call “involuntary transparency,”125[27] reshaping the conversation over leaks of secret government information to the press.126[28]  In earlier instances such as the Pentagon Papers, secret government documents reached a single journalist or a small group of journalists, and the public gained access not directly to the secret infor­mation itself but instead to the finished journalistic product.127[29]  The raw material was summarized, adapted, or otherwise filtered before it reached the masses, and sometimes it included changes that reflected the requests of incumbent government officials.  Now, however, Wikileaks has made a series of large-scale disclosures of secret government information readily available to individual mem­bers of the public, often with little or no redaction of sensitive information.  The site has provoked complaints from sources as diverse as the U.S. Department of Defense and Amnesty International, particularly after a trove of 250,000 unredacted documents—apparently released by accident—put the lives of some foreign supporters of U.S. policy at risk.128[30]

But even for voluntary government disclosures, increased privacy risk may be a fundamental objection to these new technologies: The more easily disparate sources of information can be analyzed, combined, and cross-referenced, the greater the chance that previously pseudonymous information can be tied to the iden­ti­ties of particular real people.129[31]  On the other hand, a rush to limit adaptability to reduce the risk of privacy harms could create a “tragedy of the data commons,” in which privacy fears foreclose valuable new insights into public issues.130[32]

“Mosaic” risks in national security present an analogous problem: Even if it is not sensitive when considered in isolation, a release of seemingly innocuous data may become useful to America’s adversaries if it can be combined to yield sen­sitive inferences about America’s defense and intelligence posture.131[33]

Our goal here is not to take a position as to the salience or implications of these risks but rather simply to point out that they can complicate the cost-benefit calculus of the governmental “open data” trend.

III.    Our Proposal

Clearer language is possible, and it will serve everyone well.

From civic accountability to transit data to health statistics, online disclosures of government data across the world share one exciting feature: They are far more adaptable than ever before.  Statistics can be mapped, schedules automated, dis­parate trends cross-referenced, and useful information localized and personalized to a historically unprecedented extent.  Online data—particularly if it is structured, machine readable, and available for interested users to download in bulk—can be more readily adapted to new formats, new uses, and new com­binations than ever before.  Adaptability is independent of subject matter: Any subject—including transit, regulation, schools, crime, or housing—can be a source of data, and that data may be more or less adaptable depending on the format in which it is gathered and presented.

Offline data is very different: They gather dust in filing cabinets, often disorganized and disregarded.  An obscure bit of information remains apart from the handful of people who might really benefit from knowing it because it would cost too much to search, sort, or reorganize.  Offline data, though available in principle, is physically and psychologically heavy, encumbered by brick and mortar logistics, and tucked away in rooms with limited opening hours.  Offline data is inert.

Public disclosures thus occupy a spectrum, from the most adaptable data to the most inert.  Adaptability may depend on not only the format of the data itself but also on the prevalence and cost of the human and technological capital neces­sary to take advantage of it.

Disclosures also vary in a second dimension: They differ markedly in their actual or anticipated impact.  A machine-readable bus schedule aims to promote convenience, commerce, and a higher quality of life—it enhances service delivery.  Core political data, such as legislative or campaign finance information, serves a more purely civic role, enhancing public accountability.  Disclosures of public contracting opportunities play a dual role, potentially enhancing both economic opportunity and public integrity.


The diagram displays this conceptual model and gives several examples.  The vertical axis describes the data itself, in terms of its degree of adaptability.  The lateral axis is a continuum from purely pragmatic to purely civic disclosures.

The vagueness of “open government” has undercut its power.  Separating technological from political openness—separating the ideal of adaptable data from that of accountable politics—will make both ideals easier to achieve.  Public servants can more readily embrace open data, and realize the full range of its ben­efits, when it is separated from the contentious politics of accountability.  At the same time, political reformers—no longer shoehorned together with technologists—can concentrate their efforts on political accountability, whether or not they rely on new technology.  And governments will be less likely to substi­tute technol­ogy initiatives for hard political change.


  1. ^ The Benefits of a Big Tent: Opening Up Government in Developing Countries (
  2. ^ See, e.g., About,, (last visited Apr. 17, 2012) (“The State of California was one of the first states to launch an open data repository. was designed to provide a single source of raw data in the state.  By posting state government data in raw, machine-readable formats, it can be reformatted and reused in different ways, allowing the public greater access to build custom applications in order to analyze and display the information.”); NYC OpenData, (last visited June 8, 2012) (“The data sets are now available as APIs and in a variety of machine-readable formats, making it easier than ever to consume City data and better serve New York City’s residents, visitors, developer community and all[.]”); Open Data,, (last visited June 8, 2012) (displaying rural-health, school-performance, and other data for the state of Texas). (
  3. ^ See Gavin Newsom, San Francisco Opens the City’s Data, TechCrunch (Aug. 19, 2009), (
  4. ^ Directive 2003/98 of the European Parliament and of the Council of 17 November 2003 on the Re-use of Public Sector Information, art. 3, 2003 O.J. (L 345) 94, available at (
  5. ^ See Eur. Pub. Sector Info. Platform, (last visited June 8, 2012). (
  6. ^ See Ed Mayo & Tom Steinberg, The Power of Information: An Independent Review (2007), available at; see also Chancellor of the Duchy of Lancaster, The Government’s Response to The Power of Information: An Independent Review by Ed Mayo and Tom Steinberg (2007), available at (
  7. ^ See About the Taskforce, Power Info. Taskforce, (last visited June 8, 2012). (
  8. ^ See Tim Davies, Open Data, Democracy, and Public Sector Reform: A Look at Open Government Data Use From (2010), available at http://practical (
  9. ^ Press Release, White House Office of the Press Sec’y, Remarks by the President to the United Nations General Assembly (Sept. 23, 2010), president-united-nations-general-assembly. (
  10. ^ See, e.g., Working Agenda for Open Government Partnership: An International Discussion Meeting of July 12, 2011,, (last visited June 8, 2012). (
  11. ^ See OGP Minimum Eligibility Criteria, Open Gov’t Partnership, (last visited June 8, 2012). (
  12. ^ Open Government Declaration, supra note 3, at 1. (
  13. ^ Id. (
  14. ^ See Maria Otero, How the Open Government Partnership Can Reshape the World, Guardian Prof’l—Open Gov’t Brasilia 2012 (May 11, 2012, 3:30 AM), public-leaders-network/blog/2012/may/11/open-government-partnership-reshape-world (“55 countries have committed to taking steps towards openness through OGP.”). (
  15. ^ See Russia, Open Gov’t Partnership, (last visited June 8, 2012). (
  16. ^ See What Is the Open Government Data Initiative?, Microsoft, (last visited June 8, 2012). (
  17. ^ See Clay Johnson, Adobe Is Bad for Open Government, Sunlight Labs Blog (Oct. 28, 2009, 12:57 PM), (“They’ve spent what seems to be millions of dollars wrapping buses in DC with Adobe marketing materials all designed to tell us how necessary Adobe products are to Obama’s Open Government Initiative. . . . Here at the Sunlight Foundation, we spend a lot of time with Adobe’s products—mainly trying to reverse the damage that these technologies create when government discloses information. . . . As ubiquitous as a PDF file is, often times they’re non-parsable by software, unfindable by search engines, and unreliable if text is extracted.”); see also Chris Foresman, Adobe Pushes Flash and PDF for Open Government, Misses Irony, Ars Technica (Oct. 30 2009, 8:58 AM), (“[W]e can’t help but notice how the entire site—designed in [a proprietary Adobe format called] Flash—is practically inaccessible. . . . Wrapping all publicly accessible information in proprietary formats is neither a good nor complete solution.  Providing documents in PDF form, or augmenting a website with additional Flash content is certainly useful.  However, the goal of open government would be better served using open standards, like HTML, XML, JSON, ODF, and other formats that are both accessible and machine-readable.”). (
  18. ^ See Socrata, (last visited June 8, 2012). (
  19. ^ The Sunlight Foundation, a key actor in this area, goes so far as to say it is “committed to improving access to government information by making it available online, indeed redefining ‘public’ information as meaning ‘online.’”  Our Mission, Sunlight Found., (last visited June 8, 2012). (
  20. ^ See Jennifer Shkabatur, Transparency With(out) Accountability: Open Government in the United States, 31 Yale L. & Pol’y Rev. (forthcoming 2013) (manuscript at 3–4), available at sol3/papers.cfm?abstract_id=2028656 (“[C]urrent [U.S.] transparency policies do not strengthen public accountability. . . . The existing architecture of online transparency allows [federal] agencies to retain control over regulatory data and thus [to] withhold information that is essential for public accountability purposes; prioritizes quantity over quality of disclosures; and reinforces traditional barriers of access to information.  Hence, although public accountability is the raison d’être of online transparency policies, they largely fail to improve it.”). (
  21. ^ 21st Century Government,, (last visited June 8, 2012). (
  22. ^ OSTP Leadership & Staff,, (last visited June 8, 2012). (
  23. ^ Beth Simone Noveck, Defining Open Government, Cairns Blog (Apr. 14, 2011, 12:57 PM), (
  24. ^ Id. (
  25. ^ Id. (
  26. ^ Nathaniel Heller, Is Open Data a Good Idea for the Open Government Partnership?, Global Integrity Commons (Sept. 15, 2011, 12:41 PM), (
  27. ^ See Shkabatur, supra note 118, at 37–41 (defining and discussing a category of “involuntary transparency”); see also Andy Greenberg, WikiLeaks’ Julian Assange Wants to Spill Your Corporate Secrets, Forbes, Nov. 29, 2010, (“Admire Assange or revile him, he is the prophet of a coming age of involuntary transparency. . . . Long gone are the days when Daniel Ellsberg had to photocopy thousands of Vietnam War documents to leak the Pentagon Papers.  Modern whistleblowers, or employees with a grudge, can zip up their troves of incriminating documents on a laptop, USB stick or portable hard drive, spirit them out through personal e-mail accounts or online drop sites—or simply submit them directly to WikiLeaks.”). (
  28. ^ See Curt Hopkins, ReadWriteWeb’s Comprehensive WikiLeaks Timeline (UPDATED), ReadWriteWeb (Dec. 29, 2010, 7:02 PM), wikileaks_timeline.php. (
  29. ^ For a review of the Pentagon Papers case, written in light of the WikiLeaks events, see Tom Kiely, Pentagon Papers: National Security and Prior Restraint, 20 Historia 138 (2011), available at (
  30. ^ See Gloria Goodale, Who Released the Trove of Unredacted WikiLeaks Documents?, Christian Sci. Monitor, Sept. 1, 2011, (
  31. ^ See Paul Ohm, Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization, 57 UCLA L. Rev. 1701, 1701 (2010) (“Computer scientists have recently undermined our faith in the privacy-protecting power of anonymization, the name for techniques that protect the privacy of individuals in large databases by deleting information like names and social security numbers.”). (
  32. ^ See Jane Yakowitz, Tragedy of the Data Commons, 25 Harv. J.L. & Tech. 1, 3–4 (2011) (“[P]roposals that inhibit the dissemination of research data dispose of an important public resource without reducing the privacy risks. . . . [I]t is in fact the research data that is now in great need of protection.  People have begun to defensively guard anonymized information about themselves.  We are witnessing a modern example of a tragedy of the commons.”). (
  33. ^ See David E. Pozen, Note, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 Yale L.J. 628 (2005) (drawing attention to the growing use of mosaic claims to deny FOIA requests in the wake of the September 11, 2001 terrorist attacks). (

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