Shield Law Moves Forward, Defines Journalism So That It Leaves Out Wikileaks & Random Bloggers

from the this-is-a-mistake dept

There have been debates on a setting up a special journalist shield law for many years, and every time it comes up it leads to something problematic, as various supporters suddenly want to narrowly define what a journalist is, often in a manner that carves out new forms of media. And, indeed, it appears that's exactly what happened this morning in the Senate Judiciary Committee. Eventually, the bill passed out of committee with a much broader definition than some feared, but one that still tries to define who is a journalist very specifically -- in a manner that "carves out" the specific kinds of journalism Congress doesn't like, such as Wikileaks.

The new amendment, brokered by Sen. Chuck Schumer, significantly expands on that definition. Now, a journalist would be defined as someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist.

In addition, the law would protect a person deemed appropriate by a federal judge, so long as their newsgathering practices have been consistent with the law.

This is better than it could have been, and giving judges the ability to go beyond the narrow definition is at least better than the alternative. However, it still is an attempt to carve out certain types of journalism that Congress is uncomfortable with -- and frankly, I'm rather uncomfortable with Congress thinking that its role. Chuck Schumer flat out said that he wanted this definition to exclude Wikileaks -- which is an operation that many of us believe absolutely is a journalistic operation.

"The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that," Schumer said at the time. "But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill."

In fact it seems like a good part of the hearing this morning was an attempt for Senators to show their contempt for the types of journalists they don't like. Senator Feinstein, who has been pushing for a very narrow definition for a long time, suggested at the hearing -- as if it were self-evident -- that no 17-year-old high school drop-out with a blog should be covered. But why? What if that high school drop out does actual journalism and breaks a story about, say, government corruption? Why shouldn't she be covered? Senator Jeff Sessions went to ridiculous lengths, arguing that journalists who reveal classified info shouldn't be covered. In other words, those who do real investigative journalism and expose government wrongdoing wouldn't be considered journalists if his amendment had passed (thankfully, it didn't). But, as Senator John Cornyn pointed out, just the fact that you had the Senate debating who should and who shouldn't be a journalist should be "chilling to us all." Though, of course, even Cornyn wanted to only cover journalists who are Americans.

In the end, what passed is extremely flawed and definitely not a step in a good direction. Once we reach the point at which we even allow Congress to set parameters for who should, and who should not be considered a journalist, we've gone too far. Because we know that setting that precedent will lead to further encroachments down the road. Furthermore, the current definition will almost certainly not protect journalists when they need it most, in stories involving "national security," more or less making this law a dead letter on arrival.

We've long advocated that any shield law shouldn't try to define journalists by their profession, but rather should focus on journalism by the process and actions taken. That makes much more sense, since today anyone can do journalism, even if they're not employed as a journalist.

However, the more I've seen this process play out, the more I'm convinced that any media shield law is a bad idea in that it tries to set up a separate tier of free speech in which a certain class of people or certain actions are "more protected" than others. The argument that we already have a media shield law known as the First Amendment is an increasingly compelling argument.

Filed Under: bloggers, chuck schumer, dianne feinstein, jeff sessions, john cornyn, journalism, journalists, shield laws, wikileaks

Congress Flips Out About 'Snowden The Traitor' As They Try To Pass Legislation To Stop The Program He Revealed

from the cognitive-dissonance dept

Congress is quite incredible at times. Compare and contrast the following two articles. First, we've got the news that Congress is pushing very, very hard to roll back and limit the various NSA surveillance programs -- programs that we only really know the full details about because of the leaks from Ed Snowden to the press. Then, we've got a bunch of Senators calling Snowden a traitor and arguing that Russia has "stabbed us in the back" by taking Snowden in. It's as if they don't even realize what they're saying and how fundamentally ridiculous they look:

“Russia has stabbed us in the back, and each day that Mr. Snowden is allowed to roam free is another twist of the knife,” said Senator Chuck Schumer....

[....] “I think this is a troubling pattern,” Ayotte said, pointing to Putin’s support for Syrian dictator Bashar Assad, his crackdown on adoptions and a string of other decisions in which he’s “basically just trampling on what we’ve expressed to him that we want to see happen … we’re not just talking about Snowden here.”

[....] “I think Snowden is a traitor, and Putin did a wrong thing."... Senate Majority Leader Harry Reid told BuzzFeed.

[....] “Russia’s action today is a disgrace and a deliberate effort to embarrass the United States,” McCain said in a statement.

So... he's a traitor, and Russia has "stabbed us in the back" by allowing him to stay in that country... and... oh yeah... we need to fix this whole spying thing that Congress really sorta kinda knew about all along, but didn't much care about until Snowden let the public in on it. Incredible.

Filed Under: chuck schumer, congress, ed snowden, harry reid, john mccain, kelly ayotte, legislation, nsa, nsa surveillance, traitor

Up Against The Wall, America! Sen. Schumer Touts NYPD Chief Kelly For Next Head Of Homeland Security

from the if-anyone-has-any-reason-why-these-two-should-not-be-joined... dept

Janet Napolitano is leaving her post as the head of the DHS and leaving a vacancy that some (particularly Sen. Chuck Schumer) think would be best filled by Ray "Stop and Frisk" Kelly. (Or, if you prefer, Ray "Privacy Is Off the Table" Kelly.)

This isn't a particularly surprising selection. Schumer's home state is New York and picking Kelly is sort of a no-brainer. As Mike Riggs at Reason points out, the case for Kelly as head of the DHS goes all the way back to 2008, when national security insiders floated the suggestion.

Unfortunately for fans of civil liberties, adding Ray Kelly to the DHS takes a bad thing and makes it worse.

First off, there's the NYPD's infamous stop and frisk program, which has targeted minority youths almost exclusively. Putting Kelly in charge of Homeland Security is just asking for a national rollout of stop and frisk, bringing the fun of being a minority in New York City to citizens around the country. There's no dissuading Kelly (or Commander in Chief of the "seventh largest military in the world," Mayor Bloomberg) of its effectiveness, even if the numbers don't back up their claims.

Kelly also famously announced that "privacy is off the table" as a result of the Boston bombing. Kelly has no qualms about expanding law enforcement surveillance networks, no matter how unpopular it is with the public. He has expressed his admiration for London's network of cameras, which he hopes to emulate in New York City. The NYPD has taken steps towards all-encompassing surveillance aided by (oddly enough) Microsoft. Take that set of ideals and expand it nationwide.

Despite his willingness to invade everyone else's privacy, Kelly's own police force is positively opaque when it comes to transparency. FOIA requests are routinely stonewalled when not being actively battled in courtrooms, much to the dismay of taxpayers' wallets.

The one thing Kelly does feel government/law enforcement/intelligence agencies should be open about is how much spying they're planning on doing. His only reaction to the NSA leaks was dismay at the fact that the NSA didn't just tell Americans they're going to be spied on.

“I don’t think it ever should have been made secret,” Kelly said yesterday, breaking ranks with other US law-enforcement officials. “I think the American public can accept the fact if you tell them that every time you pick up the phone, it’s going to be recorded and it goes to the government. I think the public can understand that. I see no reason why that program was placed in the secret category.

There's Kelly's version of transparency: telling the public how its privacy is going to be violated. If nothing else, Kelly's theoretical term as the head of the DHS would result in a brave, new world of confrontational transparency -- top-down blasts of invasive programs, delivered in a like-it-or-leave-it tone that leaves no room for debate or discussion.

Beyond this, we also have the NYPD's pitiable record of constitutional violations when it comes to its joint anti-terrorist efforts with the FBI. Plenty of spying, surveillance and privacy violations. Very little in the way of actual terrorists rounded up.

So, here's a guy with a track record that features a combination of wholesale civil liberties violations and an aversion to any form of accountability. Kelly has proven he's willing to alienate constituents in pursuit of an all-encompassing police/surveillance presence. He's also made it clear that he unreservedly buys into the "because terrorism" rhetoric.

Unfortunately for America, every listed argument against Kelly as head of the DHS is a point for him under the current administration. The boundless expansion of Bush's domestic surveillance under Obama has laid the perfect foundation for a man who believes citizens should be seen and heard -- at all times. If the Constitution is holding back a preferred program, there's always the secret court ready to provide secret interpretations of existing laws, thus assuring that everything is properly overseen and above board.

Kelly isn't necessarily a "yes man," but he's a perfect fit for an agency that has steadily trampled on the Constitution since its formation. The "welcomed debate" on privacy vs. security would become little more than a faint memory. Kelly's arrival would signal an end to the discussion no one in Washington really wants to have. There are precious few people who believe the DHS and its accompanying agencies weren't invasive enough, but adding Kelly to the mix should take that number down to zero.

It's Kelly's world. You're all just living in it "persons of interest."

Filed Under: chuck schumer, dhs, homeland security, janet napolitano, mike bloomberg, nypd, ray kelly, stop and frisk

Is It Really A Good Idea To Open A 'Mini' Patent Office Directly Within Cornell's NYC Tech Campus?

from the and-what-about-open-innovation? dept

I've been pretty excited about the fact that my alma mater, Cornell, won the competition last year to open a massive NYC-based tech campus -- with a key focus on actually spinning innovation out into the market. I'd been able to spend some time with the folks who put together Cornell's bid, and the plan is really, really ambitious in a good way for innovation in the region. However, I'm a bit troubled by the recent news -- announced with great fanfare -- that the Commerce Department is setting up its own "mini-patent office" directly on the campus. While various politicians celebrated the announcement, statements like the following one from Senator Chuck Schumer make me cringe:

“Creating a direct link between the patent office and inventors is a simple and virtually cost free way to reduce red tape, and help our best and brightest produce the next iPhone or microchip. When all is said and done, New York City will have the only college in the nation where you can get advice on patenting your latest invention between grabbing a sandwich at the dining hall and picking up your laundry, all without leaving campus.”

The problem, of course, is that this perpetuates the myth that patents correlate to actual innovation or bringing products to market. There is little to no evidence to support that -- but there's plenty of evidence to suggest that patents often get in the way of innovation. Embedding a patent office directly on the campus may skew the efforts there to focus on patents over alternatives. We've discussed how some businesses are focusing on open hardware and argue that avoiding patents is a better strategy. But somehow, I doubt the mini-Patent Office on the campus is going to talk about that when a student swings by.

The whole thing just reinforces the myth of how patents are a key part of innovation, when the research shows the exact opposite.

Cornell's President, David Skorton, claims that this will help "the dialogue":

“A key part of Cornell Tech's mission is to encourage innovation and economic development by helping to facilitate all aspects of university, industry, and government collaboration,” said Cornell President David J. Skorton. “This partnership with the Department of Commerce will not only bring a new resource to the campus and to New York's tech entrepreneurs, it will also help create a new dialogue about intellectual property in the information age to help improve the innovation process in the United States.”

But, how is that dialogue created when you have an embedded person with one viewpoint, but not competing viewpoints?

Even worse, the press release announcing all of this cites the silly study the Commerce Department put out that showed correlation between jobs and very loosely defined "IP-intensive industries" to support the argument that this mini-patent office will somehow create jobs. Of course, that report was laughable. Its definition of "IP intensive" was so broad, that the biggest impact IP had on jobs was... in grocery stores. Also, the key to its argument that patents are good was that Steve Jobs had patents and made some cool products, so patents are clearly a good thing. But even at its worst, the report made clear that it was taking no position on the policy questions and shouldn't be used for such purposes... Yet here it is, in this press release, as if it's gospel that more patents will mean more jobs:

According to a recent Commerce Department report, intellectual property-intensive industries supported 40 million jobs in 2010, and contributed $5.06 trillion to the U.S. economy. By providing IP protection and commercialization tools for entrepreneurs, this partnership will drive additional job growth and serve as a forum for exploring ways to balance the free flow of information with the protection of IP in a digital era.

It's a real shame that my own alma mater -- whose economics professors helped shape my understanding of why and how patents could be so dangerous -- seems to be perpetuating these kinds of myths.

Filed Under: chuck schumer, cornell, innovation, patent office

Silk Road: Illicit Goods Plus Anonymity Equals... A Fairly Small Business

from the but-the-customers-are-happy dept

The anonymous marketplace Silk Road got some attention about a year ago when Gawker did a big expose on the site, which can only be accessed via the TOR network, and which requires Bitcoin for all purchases. That bit of publicity also resulted in Senator Chuck Schumer demanding something be done about the site, while also suggesting that Bitcoin itself was a form of money laundering. While there are a bunch of similar sites, the "publicity" has established Silk Road as the most well known such site.

Nicolas Christin, from Carnegie Mellon, recently released a fascinating research paper analyzing the Silk Road marketplace. Christin also recently appeared on Jerry Brito's Surprisingly Free podcast, which is where I first heard about the report.

There are a bunch of interesting things in the report itself, but a few key points that seemed especially interesting. The market is surprisingly stable. You might think with a very (but certainly not totally) anonymous marketplace, that seems to focus mostly on illegal products, using a really volatile currency, that the market itself would be pretty volatile as well. But the data does not suggest that at all. Also, you might expect a number of scammers to use the site, but (like plenty of regular online marketplaces), Silk Road has a rating system, and the research found that there was tremendous customer satisfaction:

On a site like Silk Road, where, as shown above, most of the goods sold are illicit, one would expect a certain amount of deception to occur. Indeed, a buyer choosing, for instance, to purchase heroin from an anonymous seller would have very little recourse if the goods promised are not delivered. Surprisingly, though, most transactions on Silk Road seem to generate excellent feedback from buyers. Table 3 provides a breakdown of the feedback ratings from 187,825 feedback instances we collected. 97.8% of feedback posted was positive (4 or 5 on a scale of 1 to 5). In contrast, only 1.4% of feedback was negative (1 or 2 on the same scale).

Also, it will come as little to no surprise that the vast majority of products for sale are not what most people would consider legal. Drugs seem to represent an overwhelming percentage of items for sale, though there are also things like "books" for sale. Finally, it doesn't appear that the "business" is really that big. For all the talk and publicity around it, you might think it was a decently sized operation, but there's little to support that. When Christin began his research back in November last year, there were only 220 sellers. By the time he finished in July, it was 564. So the number is growing, but it's still not a huge number. Christin also made some reasonable assumptions and estimates to suggest that approximately $1.9 million worth of transactions happened on Silk Road in a month. Translating the commissions, he believes that the site's operators likely brought in approximately $143,000 per month in commissions. At first glance that may sound like a lot but, assuming rather significant costs to operating and maintaining the site while keeping everything as secret as possible, there really isn't that much left for "staff," though no one has any idea how big a "team" there is involved in the operation. It's possible it's just one person, of course, in which case, the money is probably pretty good (and growing).

The report also notes various ways that such a site might be disrupted... and you have to imagine that law enforcement has been working on doing exactly that. It won't surprise me at all to find out that the operators of the site eventually do get tracked down, but I doubt that will stop these kinds of marketplaces from existing.

Filed Under: bitcoin, chuck schumer, tor
Companies: silk road

Facebook's Lower Stock Price Means Saverin Doubled Tax Bill By Leaving The Country

from the oops dept

Back when Facebook first rolled out its IPO in the same smooth and easy fashion as an Olympic hurdler racing with his testicles twisted like a Navy Pier pretzel, Eduardo Saverin, Facebook co-founder, entered the crosshairs of some United States congressmen looking to make some noise. See, Eduardo decided that taxes suck and he wanted to incur as little of said suckiness as possible, so he renounced his American citizenship and declared his love for Singapore. This, according to Chuck Schumer and Bob Casey, made him evil personified.

Exhibit 1: Artist's rendering based upon Chuck Schumer's description

The argument was that Saverin had allowed this country to help make him rich and now, in an evil move that was completely legal, he was going to evade paying the full taxes of an American citizen by no longer being one. To combat this unholy act, Schumer and Casey unveiled the oh-so-cleverly named EX-PATRIOT Act, which would levy heavy taxes on Saverin and anyone else who thought they could escape the virtous clutches of the American tax system.

"This is a great American success story gone horribly wrong," Schumer told reporters Thursday. "Eduardo Saverin wants to defriend the United States of America just to avoid paying taxes. We aren't going to let him get away with it."

But, as fate would have it, Facebook's stock price dropped faster than a Righthaven lawsuit. And the result, according to Forbes, may be that Saverin paid more in taxation than he would have had he stayed in The States.

A couple of things got missed in the furore. The first was that he had to pay tax on his Facebook stock as if he sold it on the day of his citizenship renunciation. The value then was some $2.4 billion, leading to a $365 million tax bill. That tax bill is fixed of course: now that he’s no longer a citizen he doesn’t get any tax breaks or credits on losses he might make. Which of course he has done. Since he crystallised that tax bill his stock (assuming he’s still holding it and he would have been until just now because of the lock in around the IPO) has halved in value to about $1.2 billion. But he still owes that $365 million.

So, at least so far, the net effect of his renunciation has been to double his tax bill, not reduce it. Oh, and if he hasn’t paid the tax as yet then he has to pay interest to the IRS on it.

And there we have it. Schumer and Casey drafted legislation, which didn't pass, to combat a guy who did something legal because they insisted it was unfair that he escape full taxation by renouncing his citizenship. It turns out that Saverin's renunciation caused him to be overtaxed by a rather substantial rate. Any takers on whether Schumer and Casey would be open to Saverin claiming relief from this overtaxation?

Filed Under: chuck schumer, eduardo saverin, stock, taxes
Companies: facebook

Would You Like To Keep The Government From Spying On You? Speak Up Now

from the do-you-have-a-secret? dept

We've been talking about the Senate debate over cybersecurity all week, and it appears that it's moving into the endgame process. Last night, Senate Majority Leader Harry Reid called for cloture -- basically the process to end the debate and move to a vote. In doing so, he also set it up such that he's basically blocking most amendments from being discussed. However, the important Franken/Paul amendment that increases privacy protections will be voted on. In fact, it will be the first amendment to be considered. Whether or not the overall bill passes (and there's some skepticism about whether the votes exist), it is important that the Franken/Paul amendment pass, and Congress get the message that protecting the public from government snooping is an issue the public cares about. Senate staffers have been saying that they've been getting calls on this issue, but more would certainly help.

The folks at Fight for the Future have set up the excellent Do you have a secret? site to highlight why government snooping is a serious problem. Similarly, the EFF has set up a useful site with an embedded Tweet tool (and, yes, tweeting about this also helps -- staffers are paying attention to this, though calling is always best).

The Franken/Paul amendment does have some support, including from Senator Chuck Schumer who made an impassioned speech last night for protecting our privacy rights within this bill, and how important such privacy protections were to the future of the internet. Either way, today and tomorrow are important days for letting your Senators know that stopping the government from snooping on your private info online is important to you, so speak up.

Filed Under: al franken, chuck schumer, cybersecurity, privacy, rand paul, senate

Let Your Senator Know Right Now That You Are Watching If They'll Vote To Protect Privacy

from the speak-up dept

On Friday, we mentioned that this week is the week in which the Senate will wrangle over the new Cybersecurity bill. The current bill has some privacy safeguards, but not nearly enough. Senators Al Franken and Rand Paul have put together an amendment to strengthen the privacy safeguards even more -- and over the weekend, Senator Chuck Schumer agreed to co-sponsor the Franken/Paul amendment after talking to various folks in the tech industry and the civil liberties community. That adds more weight to the amendment. Unfortunately, Senators John McCain and Kay Bailey Huchison and a few others, who have been carrying water for the NSA throughout this fight, are looking to move the bill very far in the other direction, wiping out tons of privacy protections. It's really shameful.

Either way, this is the week to let your Senator know how you feel about all of this (and if you're a constituent of McCain or Huchison, please ask why they're so against protecting the privacy of the American public). The American Library Association has kindly set up a simple one-click tool to call your Senator and let them know how you feel.

The EFF has a page with some more info as well, noting that it's basically too late to email your Senators, so please call. If you want some more info, check out Fred Wilson's analysis of the situation, which matches almost exactly with mine. We still have not been given a compelling reason why any such legislation is needed. We keep hearing scare stories about mushroom clouds and planes falling from the sky if information can't be shared. But... what no one has done yet is explain which existing regulations block the necessary sharing of information. If they did that, we could look at fixing those laws. Instead, we're just told scare stories and given a massive 211-page bill that wipes out all sorts of previous laws, and adds all sorts of other things to the law. Given the length of the bill, it's quite likely there are some awful "easter eggs" in there that we'll only discover years down the road.

That said, if the bill is going to pass, it would be much better if it had very strong privacy protections in it, and the Franken/Paul amendment go a long way towards putting such protections in. The McCain/Huchison proposal do the opposite, and basically seek to take away privacy protections, while giving the NSA much more ability to access your data. Don't let the Senate trample your privacy rights. Go ahead and use the ALA's tool to contact your Senator today.

Filed Under: al franken, chuck schumer, cybersecurity, john mccain, kay bailey huchison, privacy, rand paul, senate

FBI Explores The Implications Of Bitcoin

from the why-that's-so-2011 dept

Remember Bitcoin? The online cryptographic currency that got a lot of attention last year, but quickly faded? There was some political grandstanding against it, like when Senator Chuck Schumer declared that Bitcoin was a form of money laundering. And, now, the FBI is trying to understand Bitcoin, sending around a document warning that criminals might (*gasp*) use Bitcoin.

The report is pretty even-handed, actually. It notes that there's a reasonable likelihood that "malicious actors will exploit Bitcoin to launder money." However, it at least admits, noting that this is no different than cash, that users of Bitcoin "value the currency for many of the same reasons people trust Federal Reserve notes: they believe they can exchange the currency for goods, services or a national currency at a later date." It does highlight some "unique features" that make Bitcoin especially suited for illegal activity -- but most of those just seem to be examples of Bitcoin being used for questionable activity, rather than specific features of Bitcoin.

It also suggests that the FBI isn't that worried about the fact that some uses of Bitcoin can be anonymous -- noting (correctly) that it's not as anonymous as some people think, and good old fashioned detective work can often uncover the people:

Although Bitcoin does not have a centralized authority, the FBI assesses with medium confidence that law enforcement can discover more information about, and in some cases identify, malicious actors, if the actors convert their bitcoins into a fiat currency. Thirdparty bitcoin services may require customers to submit valid identification or bank information to complete transactions. Furthermore, any third-party service that qualifies as a money transmitter, and therefore a MSB, must register with the FinCEN and implement an anti-money laundering program.

All in all, I actually expected more hyperbole and fear mongering, but seeing as this was meant for internal use, rather than for political gain, it seems like the paper was pretty even-handed. Of course, none of that matters at all if no one is using Bitcoin any more...

Filed Under: bitcoin, chuck schumer, fbi