Ajit Pai Rushes To Weaken Media Ownership Cap To Aid Sinclair... While Under Investigation For Being Too Cozy With Sinclair

from the ill-communication dept

We've discussed for a while now how FCC boss Ajit Pai is busy gutting decades old media consolidation rules simply to help Sinclair Broadcast Group complete its $4 billion acquisition of Tribune. Many of these rules traditionally enjoy bipartisan support, since they protect local news organizations and free speech from being crushed by any one, major broadcaster. And Sinclair's merger, which would allow it to reach nearly 72% of the country with its facts-optional and monolithic programming (as that recent viral Deadspin video attests), has been routinely under fire by groups on both sides of the partisan aisle.

As Sinclair moved to acquire Tribune, it kept running into FCC rules. Rules Ajit Pai was more than happy to systematically remove at every step in perfect synchronicity with Sinclair's ambition. And while Pai's allies on the commission claim this timing is all just quirky happenstance, the allegations have resulted in the FCC's nonpartisan inspector general launching an investigation into possible corruption and coordination between the FCC and the broadcaster. Pai's fellow Commissioners like Jessica Rosenworcel have publicly stated the Trump FCC is little more than a rubber stamp for Sinclair:

To specifically help Sinclair's merger squeeze in under the media ownership cap, Pai's FCC restored an irrelevant bit of 1980's regulatory guidance known as the UHF Discount. Built in the 1980's as a mechanism to adjust for the lesser quality and reach of UHF stations, the rule was eliminated a few years ago for being the sort of outdated regulatory red tape Pai's FCC routinely pretends to be waging war against. But Pai's FCC suddenly and quickly restored the rule just a few weeks before Sinclair announced its merger, conveniently allowing Sinclair to under-state the company's real ownership reach.

That, in turn, has resulted in a looming legal challenge driven largely by consumer groups (but again enjoying bipartisan support from Conservatives like Newsmax CEO and Trump ally Chris Ruddy):

"A panel of appellate judges questioned why the FCC reinstated a rule that allows media companies to amass a greater number of stations and still fall within ownership limits...The three judges on the DC Circuit Court of Appeals panel raised some concerns about the rationale behind the FCC’s decision in April, 2017, to reinstate the UHF discount after abolishing it a year earlier...

Chris Ruddy, the CEO of Newsmax, who has been highly critical of the FCC’s action, as well as of the Sinclair-Tribune merger, said in a statement that “the judges on the DC Circuit reviewing the FCC’s UHF discount were left scratching their heads wondering why the rule was re-instated when everyone — Republicans and Democrats alike — agree that the discount is an analog relic and makes no sense in a digital world.

Undaunted by an ongoing corruption investigation, Pai is rushing forward with a July 12 vote to further erode a rule prohibiting any one broadcaster from reaching more than 39% of the national audience. The hope, clearly, is to formalize a higher overall ownership cap before the courts can challenge the FCC's previous rule changes. However, there's ample question as to whether the FCC has the authority to modify this cap (even some of Pai's allied Commissioners have acknowledged they may not), and such a ruling will absolutely be quickly appealed.

Sinclair, meanwhile, is busy trying to burrow over and under what media ownership rules remain, in part by promising to offload some stations to shell companies or companies that still have a relationship with Sinclair.

All told, it's just another example of how Trump's "populist" rhetoric is about as deep as a mud-puddle and authentic as a wild west movie set. Between efforts to hamstring competition, neuter regulatory oversight, and gut net neutrality and rubber stamp major media mergers (from Sinclair to the looming tie up between Sprint and T-Mobile), Ajit Pai's FCC is pursuing a very specific idea of what they want the future of the internet and media to look like, with healthy competition, consumers and small business welfare being a very, very distant afterthought.

Filed Under: ajit pai, fcc, investigations, media ownership
Companies: sinclair

FBI Hoovered Up Two Years Of A Journalist's Phone And Email Records To Hunt Down A Leaker

from the sorry,-citizens,-we-have-an-omelette-to-make dept

The New York Times reports the FBI has crossed a line it's generally hesitant to cross. An investigation into classified info leaks by a Senate Intelligence Committee aide involved the seizure of two year's worth of a New York Times reporter's phone and email records.

The former aide, James A. Wolfe, 57, was charged with lying repeatedly to investigators about his contacts with three reporters. According to the authorities, Mr. Wolfe made false statements to the F.B.I. about providing two of them with sensitive information related to the committee’s work. He denied to investigators that he ever gave classified material to journalists, the indictment said.

[...]

Mr. Wolfe’s case led to the first known instance of the Justice Department going after a reporter’s data under President Trump. The seizure was disclosed in a letter to the Times reporter, Ali Watkins, who had been in a three-year relationship with Mr. Wolfe. The seizure suggested that prosecutors under the Trump administration will continue the aggressive tactics employed under President Barack Obama.

The war on unofficial transparency continues -- this time ensnaring a reporter. The indictment [PDF] shows Wolfe was in regular contact with four unnamed reporters and the classified info leaked apparently related to the investigation of Carter Page. (The indictment refers only to MALE-1.).

Despite all the dots connected by the Justice Dept. after hoovering up email and phone records of four reporters, none of the charges brought against Wolfe involved mishandling classified info. All three charges listed are for lying to the FBI, not exposing secret info. While the info obtained may have been necessary to prove Wolfe lied to investigators, it does seem like a serious breach first amendment boundaries for nothing but vanilla "lied to the feds" charges. Those charges are mostly there for the government to punish people when it thinks it can't nail down more serious charges.

And it is a breach of expected norms, if not a reliable indicator of how many civil liberties the government is willing to doormat to hunt down leakers and whistleblowers.

Under Justice Department regulations, investigators must clear additional hurdles before they can seek business records that could reveal a reporter’s confidential sources, such as phone and email records. In particular, the rules require the government to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before investigators may target a reporter’s information.

In addition, the rules generally require the Justice Department to notify reporters first to allow them to negotiate over the scope of their demand for information and potentially challenge it in court. The rules permit the attorney general to make an exception to that practice if he “determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”

It's not clear all these steps were followed. But there are a whole lot of exceptions available to the FBI to bypass these steps meant to protect the First Amendment. No one seems to have been notified beforehand, and it was far more than call/email metadata that was obtained. The indictment cites the content of encrypted messages -- suggesting yet another area where the FBI's "going dark" rhetoric is overblown.

After the story was published, WOLFE congratulated REPORTER #3, using Signal, stating "Good job!" and "I'm glad you got the scoop." REPORTER #3 wrote back, using Signal,"Thank you. [MALE-l] isn't pleased, but wouldn't deny that the subpoena was served."

Going after reporters' records may become standard operating procedure. The Obama Administration prosecuted more leakers and whistleblowers than all previous presidents combined. This administration appears ready to dwarf Obama's numbers.

Attorney General Jeff Sessions said last year that the Justice Department was pursuing about three times as many leak investigations as were open at the end of the Obama administration.

If the DOJ isn't going to give the First Amendment a wide berth, it's not going to be much friendlier to the rest of them -- like the Fourth. Aggressive pursuit of leakers -- and the attendant collection of reporters' communications/data -- will continue. The DOJ may have guidelines meant to limit investigators from obtaining journalists' records, but they're not much practical use when they can be waived to preserve the "integrity of the investigation."

Filed Under: 4th amendment, doj, fbi, first amendment, investigations, james wolfe, jeff sessions, journalists, leaks, whistleblowers

Prosecutors Say Subpoenas Will Be Used For Serious Crimes Against Children, Use Them For Everything Else

from the flexible-definitions-and-malleable-purposes dept

It's always been true: if you give a government agency increased powers for a limited purpose, the limitations and the purpose will soon be shrugged off. The ACLU of Massachusetts is trying to get some prosecutorial power reeled back in, thanks to administrative subpoena mission creep.

When prosecutors first pushed for the power to seize telephone and Internet records themselves, bypassing the need for a judge to approve a warrant, they argued the power was necessary to help them quickly track down missing children and sexual predators.

But records obtained by the American Civil Liberties Union show prosecutors have used that significant subpoena power hundreds of times a year in routine investigations related to larceny, check fraud, assault, and other common crimes.

[...]

In one case cited by the [ACLU], Suffolk District Attorney Daniel F. Conley issued a subpoena in 2011 to find the subscriber information for several Twitter handles and for anyone who used the hashtag #BostonPD after the police removed an Occupy Boston encampment in Dewey Square.

It is the same here as it is with everything else. Stingrays were supposed to be counterterrorism devices, what with them being repurposed war gear. But then it was homicides. Then drug dealers. Then pretty much anyone cops wanted to locate, even if all they'd done was steal $60 of fast food.

Likewise, National Security Letters. The clue is in the name. Maybe they're only being used for national security purposes, but if so, America is under constant threat from prolific terrorists. The FBI issues thousands of these a year. And we know very little about the underlying crimes, thanks to indefinite gag orders and loads of government court filings still under seal.

The subpoenas discussed here are also administrative. This means prosecutors write the paperwork themselves and run it past no one before serving it to internet service providers and phone companies. They also do this thousands of times a year.

Four other district attorneys disclosed a limited amount of data. But Healey and Middlesex District Attorney Marian T. Ryan turned over a large trove of information that revealed how frequently the subpoenas are used. Ryan’s office said it issued more than 2,400 over the last three years, while Healey’s office said it sent more than 1,200 during the period.

[...]

District Attorney Michael O’Keefe of the Cape and Islands, who issued 450 subpoenas over the last three years...

All for serious crimes, right?

Ryan’s office said the subpoenas were used to investigate crimes ranging from annoying calls and destruction of property to stabbing and rape of a child.

This isn't just irritating the ACLU. It's also irritating legislators who felt they were misled by prosecutors during the push for expanded power. Senator Cynthia Creem says prosecutors said it would be used to tackle crimes against children. Instead, the subpoenas are being used to handle almost any criminal activity. In response to this prosecutorial abuse of a legislated privilege, Creem is now attempting a claw-back.

Creem has filed a bill that would limit the use of administrative subpoenas to certain crimes against children and require prosecutors to report how many subpoenas they issue, the types of investigations involved, and whether they led to charges and convictions. The bill would also require prosecutors, at the close of an investigation, to inform the customers whose telephone and internet logs were seized.

Undoubtedly, this bill will face stiff resistance from prosecutors who've become accustomed to getting everything they want exactly when they want it. It's pretty difficult to convince investigators they don't need this, even though they apparently had no problem closing investigations prior to the law's passage in 2008.

Filed Under: 4th amendment, administrative subpoena, for the children, investigations, privacy, subpoenas, surveillance

Cable Lobbyists Try To Scuttle State Inquiries Into Shitty Broadband Service, Slow Speeds

from the do-not-pass-go,-do-not-collect-$200 dept

Whether it's rolling back already agreed upon merger conditions, killing net neutrality, or eliminating broadband privacy protections, giant ISP lobbyists are having a field day under the Trump administration, slowly but surely stripping away oversight of one of the least competitive -- and most anti-competitive -- sectors in American industry. We've noted repeatedly that as giant cable providers like Comcast nab an ever larger monopoly over next-gen broadband services, the end result of this myopic pursuit will be even higher rates -- and even worse customer service -- for everyone.

But there's a problem in this quest to create a new, golden era of telecom sector monopoly dysfunction: individual states.

In the wake of the attack on the FCC privacy rules, more than a dozen states have rushed to enact new privacy protections for consumers, requiring that ISPs are very clear about what data they're collecting and who they're selling it to. And in the wake of federal apathy to consumer complaints about some of the worst customer service in any industry, individual states have also started pushing back, as evidenced by New York Attorney General Eric Schneiderman's lawsuit against Charter Communications for advertising speeds company execs knew they couldn't deliver.

Ironically, cable lobbyists (and the politicians, sock puppets, think tankers and policy wonks paid to love them) have quickly rushed to defend "states' rights!" when it comes to giant ISPs' ability to write protectionist state laws that hamper broadband competition. But now that several states are actually passing legislation that might help consumers, the broadband industry and current FCC have launched a concerted effort to keep states from meddling in their attempts to build utterly-unaccountable media, advertising, broadband and television conglomerates.

Case in point: the FCC is already making noise about their plans to somehow prevent states from passing consumer broadband privacy laws. And last week, cable industry lobbyists began petitioning the FCC in the hopes of making it much more difficult for states to investigate claims of substandard broadband service and speeds, allowing them to hide behind the "up to" marketing language most of us are familiar with:

"NCTA-The Internet & Television Association and USTelecom, lobby groups for the cable and telecom industries, last month petitioned the Federal Communications Commission for a declaratory ruling that would help ISPs defend themselves against state-level investigations. The FCC should declare that advertisements of speeds "up to" a certain level of megabits per second are consistent with federal law as long as ISPs meet their disclosure obligations under the net neutrality rules, the groups said. There should be a national standard enforced by the FCC instead of a state-by-state "patchwork of inconsistent requirements," they argue.

While there are valid concerns that individual state requirements could make life more complicated for large ISPs, ignored by the NCTA is the fact that their efforts to gut meaningful federal oversight of telecom providers is the primary reason that's happening in the first place. And a bipartisan filing by 34 state attorneys general (pdf) points out that this effort has nothing to do with wanting to avoid "inconsistent requirements," and everything to do with wanting to dodge accountability for poor service on both the state and federal level:

"[I]t appears that the petition is really seeking to alter disclosure obligations under state law, including state consumer protection laws’ prohibitions on false and misleading statements and material omissions in consumer-facing advertisements," they wrote. "Such a ruling would plainly exceed the scope of the Commission’s authority granted by Congress, and would be improper." There is also "no factual basis" to determine that ISPs' speed disclosures meet the FCC's "just and reasonable" standard, they argued. "The request is plainly seeking a factual finding, despite the complete lack of any factual record to support such a conclusion," they wrote."

It's worth reiterating: when states have come under fire for letting ISP lobbyists directly write horrible protectionist legislation that hamstrings local community rights and hinders broadband competition, cable lobbyists are quick to rush to the defense of state rights. When those states actually try to hold these same broadband providers accountable for substandard service courtesy of a lack of competition, it's suddenly all a bridge too far. Meanwhile, those that still believe that blindly deregulating the telecom market will somehow magically make Comcast behave, are in for a nasty surprise over the next decade.

Again, deregulation can help competitive markets thrive. But the telecom sector, as we've long illustrated, is neither competitive nor that simple. In fact, earlier efforts to blindly deregulate an uncompetitive, utterly-dysfunctional, taxpayer-subsidized broadband industry is the precise reason most of you are currently stuck on hold with Comcast in the first place. And the sooner we collectively realize that giving some of the least ethical companies in America carte blanche doesn't magically result in connectivity Utopia, the sooner the quest for cheaper, better, and more broadly-available broadband will be fulfilled.

Filed Under: broadband, cable, customer service, fcc, investigations, service, states, states rights
Companies: ncta

DHS Boss Drums Up Fear Using The FBI's Useless Terrorism Investigation Stats

from the [extremely-Count-Floyd-voice]-'threat-assessments-ooooooooh' dept

Want to know how much of a threat terrorism poses to the United States? Just ask an agency whose relevance and budget depends on projecting the appearance of a constant threat. Here's John Kelly, the new head of the DHS:

The threat to our nation and our American way of life has not diminished. In fact, the threat has metastasized and decentralized, and the risk is as threatening today as it was that September morning almost 16 years ago.

As I speak these words the FBI has open terrorism investigations in all 50 states, and since 2013, there have been 37 ISIS-linked plots to attack our country.

The problem with swearing on a stack of FBI statements is these assertions are completely meaningless. The FBI's a well-oiled terrorist-crafting machine at this point, so it can come up with whatever number of ISIS-linked plots is needed to further the agenda of multiple government agencies.

As for "open terrorism investigations," it would be much more helpful if the FBI didn't term nearly everything it does an "investigation," even when there's nothing worth investigating. As we've covered here before, there are a few different types of investigations the FBI engages in, starting with something that looks a whole lot like an investigation (in terms of information the FBI can obtain), but really isn't. These "investigations" are called assessments, and it takes almost nothing at all to get one of these underway. Emily Hockett and Michael German of Just Security explain how the guidelines for assessments changed radically after the passage of the FISA Amendments Act in 2008.

The most drastic change came in 2008 with a set of guidelines issued by then-Attorney General Michael Mukasey, who today is an ally of President Trump. The 2008 Guidelines created a new type of investigation called an “assessment.” Assessments permit physical surveillance, database searches, interviews, racial and ethnic mapping, and the recruitment and tasking of informants without any factual or criminal predicate, that is, without any objective basis to suspect the target of the investigation has violated any law, or is likely to in the future.

Because Kelly's statement doesn't clearly define what sort of investigations the FBI is engaged in, it's quite possible the FBI only has assessments underway in several states. Rather than portray the nation as a hotbed of potential terrorism, the presence of assessments indicates nothing at all. That the FBI can engage in surveillance without "any factual or criminal predicate" is disturbing enough. Misrepresenting the depth of these investigations to further a narrative of fear is carelessness at best. It's deeply dishonest at worst.

But even if we are to take the DHS head's word at face value -- that the FBI actually has real investigations opened in all 50 states, the word "investigation" still doesn't mean much. It should never be assumed an investigation is actually an indicator of terrorist activity. There are also "preliminary investigations" -- a step above assessments but below the FBI's standard for an actual investigation. These, too, can be based on almost nothing.

Preliminary investigations require only “information or an allegation,” and contrary to Comey’s testimony, the allegation does not need to be “credible.” A 2010 Inspector General report found the FBI opened preliminary investigations on political advocacy organizations based on mere speculation that the subjects might commit a crime in the future, and the agents themselves often made the required “allegations.”

Comey's statement -- the one cited by John Kelly -- claimed all FBI investigations need "a credible allegation of wrongdoing or reasonable basis…" This obviously isn't true. Using the presence of FBI investigations to support claims of a persistent terrorist threat gives the FBI far too much credit.

The extremely low bar the FBI must avoid tripping over on its way to unwarranted (in both senses of the word) surveillance gives it plenty of busywork to keep agents and analysts busy. It does not, however, make the United States any safer.

From 2009 to 2011, the first two years the Mukasey guidelines were in place, the FBI opened over 82,325 assessments, of which only 3,315 found information that warranted opening preliminary or full investigations.

Given the preliminary investigation hurdle doesn't rise above shin-high, assessments seem to be a convenient excuse for surveilling Americans and adding this to the FBI's overstuffed databases. FBI terrorism investigations are a completely useless metric for gauging the domestic terrorism threat. But, hey, whatever sells more government power.

Filed Under: dhs, fbi, fear mongering, investigations, john kelly, terrorism

Has FBI Director Comey Created A 'Public Interest' Exception To Its Ban On Investigation Disclosures?

from the would-be-nice,-but-won't-happen dept

We noted this towards the end of our post on how the FBI is leaking like a sieve in revealing details about the investigation into Hillary Clinton's emails -- that Comey seemed to be handing reporters a perfect comeback to the bullshit response the FBI normally gives that it "won't comment on ongoing investigations." As the Intercept is now noting, Comey seems to be saying that there's a "public interest" exception to that rule, though as of right now only he gets to decide what's in the public interest:

Comey’s actions have raised lasting questions about when the public interest outweighs the current policy, and whether there should be a “public interest” exception to the Justice Department’s secrecy rules.

In his July announcement, Comey said that “given the importance of the matter, I think unusual transparency is in order.” Part of his goal was clearly to reassert the FBI’s independence from political pressure. “No outside influence of any kind was brought to bear,” he said.

If there were a public interest exception, there are many other high-profile investigations that the Justice Department could be encouraged to discuss.

Of course, the partisan folks out there have made this whole thing hilarious. Back in July, the partisan supporters of Clinton argued that such a public interest exception made perfect sense -- while the Trump supporters argued that this was an abomination and that Comey was "playing politics" in revealing information that he shouldn't have been revealing. In the last week, however, it's the Trump supporters who are suddenly big fans of the "public interest" exception to revealing details of an investigation, while the Clinton supporters are up in arms about "playing politics." Anyone who argued that one was good and the other is bad is a hypocrite. The truth is that Comey was abusing his power both times as he's done for years and years.

From a reporting standpoint, of course, journalists love that Comey is willing to reveal details (and others are willing to leak more after the fact). It provides lots of news to report on -- and we, like others, are happy to report on that information. But from a general public policy standpoint, it's a serious disaster. As Alex Emmons at the Intercept points out, there's a good reason why we don't want the FBI to comment about ongoing investigations:

There’s a reason that the Justice Department has nondisclosure rules about ongoing or closed investigations. Lots of things emerge in investigations that are not true, or do not amount to crimes. Disclosing those things can ruin reputations. So it is typically left to prosecutors to decide what accusations to make public, in the form of an indictment.

A public interest exception sounds like a good thing, but the reality is that it'll be used selectively by law enforcement, and that just creates a huge mess (as seen from the partisan outcry during both moves by Comey).

Filed Under: disclosures, fbi, investigations, james comey, leaks, public interest, public interest exception

The FBI Seems To Be Leaking Like A Sieve Concerning Details Of Clinton Email Invesgitation

from the aren't-they-supposed-to-keep-this-stuff-secret? dept

Okay, look, let's face the fact that any time we write about anything having to do with either Hillary Clinton or Donald Trump, people in the comments go nuts accusing us of being "in the tank," or "shills." or even (really) "up the ass" of one candidate or the other (and, yes, this has happened with both of the major party candidates). I'm assuming it will happen again with this post, even though it's not true. As should be abundantly clear, we're not big fans of either choice (and don't get us started on the third parties...). So when we talk about one, the other (or even both together), it's not because we're "biased" or trying to help or hurt one or the other. We're just doing the same thing we always do, and which we never had a problem with before, which is reporting on policy related issues having to do with technology, free speech, the 4th amendment, law enforcement, etc. So, before you rush in to yell at us in the comments, please consider that maybe just because we're not toeing the party line on your preferred candidate, maybe it's not because we're in the tank for the other one.

Anyway... I know there's been plenty of discussion going on about FBI Director Jim Comey's letter from last week to members of Congress about the state of the Clinton email investigation, which happened due to discoveries during the unrelated investigation into Anthony Weiner's apparent sexting. We also explored the questionable nature of Comey's actions based on the law and previous precedent (though we also mocked both Republicans and Democrats who seemed to completely flip flop their praise/hatred of Comey from the July announcement about not enough evidence against Clinton to Friday's announcement). That one really set off some people, despite our reporting on Comey's questionable behavior in office dates way back to basically when he first got the job.

But here's the thing that got me. Comey's letter on Friday had basically no details at all. Here's what it said again:

In connection with an unrelated case, the FBI has learned of the existence of emails that appear to be pertinent to the investigation. I am writing to inform you that the investigative team briefed me on this yesterday, and I agreed that the FBI should take appropriate investigative steps designed to allow investigators to review these emails to determine whether they contain classified information, as well as to assess their importance to our investigation.

Although the FBI cannot yet assess whether or not this material may be significant, and I cannot predict how long it will take us to complete this additional work, I believe it is important to update your Committees about our efforts in light of my previous testimony.

There's very little actual information in those two short paragraphs. Almost none, in fact. And yet, we now know a ton about what's going on, including all of the following:

• The "unrelated investigation" is the investigation into Anthony Weiner for allegedly sexting an underage girl.
• The emails that the FBI found were on "a device" or "devices" that belonged to Weiner and/or his estranged wife/Clinton aide Huma Abedin
• The FBI actually found these emails months ago, but didn't tell Comey until last Thursday.
• The FBI hadn't actually read the emails because it didn't have a warrant
• The FBI got a warrant over the weekend.
• It is not believed the emails in question were directly from Clinton
• Before sending a letter Comey sent an internal memo to FBI staff about his decision
• Many in the DOJ are upset about Comey sending the letter

Whether or not you believe that list or not -- or whether or not you think there are other things on that list -- what's striking to me is just how much information is easily leaking out of the FBI about a criminal investigation, especially when that investigation is supposedly, in part, about whether or not Clinton's ridiculously negligent handling of sensitive information may have been revealed to hostile parties. Doesn't it seem the least bit bizarre that the FBI, in an investigation about sensitive information, can't seem to help but leak basically all of the relevant details on an investigation?

There are, really, two issues here. Given how much of this information leaked, almost all of it within hours of the letter being made public, why didn't Comey and the FBI just come out and say all of this in the first place? The second, is how the hell can the FBI -- the very same FBI that frequently refuses to comment about "ongoing investigations" -- have any credibility in the future when it refuses to comment on other ongoing investigations. Not only did Comey comment in a way he knew would be made public, the FBI had no problem leaking basically all of the details. Everything about how this went down is bizarre, but the most bizarre part -- which seems to be getting the least attention -- is that the FBI seems to have no problem at all selectively leaking a ton of information about an ongoing investigation when it suddenly wants to do so, despite the fact that it regularly refuses to do so in all sorts of other cases. I don't put much stock in the claim, making the rounds, that the FBI deliberately refused to take part in the administration's decision to claim that Russia was behind various hacks, by arguing that it was "too close to the election," but we do know of plenty of historical cases where the FBI refuses to comment publicly on investigations or reveal any information at all. So why is it leaking like a sieve this time around?

Filed Under: emails, fbi, hillary clinton, investigations, james comey, leaks

Air Force, Lockheed Martin Combine Forces To 'Lose' 100,000 Inspector General Investigations

from the Up-in-the-air!-Into-the-wi34dz.eea.3rdek))we$#21....-[A]BORT,-[R]ETRY,-[F]AIL dept

In an era where storage is insanely cheap and the warning to schedule regular backups has been ringing in the ears of computer users for more than four decades, there's seemingly no explanation for the following:

The U.S. Air Force has lost records concerning 100,000 investigations into everything from workplace disputes to fraud.

A database that hosts files from the Air Force’s inspector general and legislative liaison divisions became corrupted last month, destroying data created between 2004 and now, service officials said. Neither the Air Force nor Lockheed Martin, the defense firm that runs the database, could say why it became corrupted or whether they’ll be able to recover the information.

The Air Force didn't lose investigations dating back to the mid-60s and stored on archaic, oddball-sized "floppies." It lost more than a decade's-worth of investigatory work -- from 2004 going forward, right up to the point that Lockheed discovered the "corruption" and spent two weeks trying to fix before informing its employer. At which point, the USAF kicked it up the ladder to its bosses, leaving them less than impressed.

In a letter to Secretary James on Monday, Sen. Mark Warner, D-Va., said the lost database “was intended to help the Air Force efficiently process and make decisions about serious issues like violations of law and policy, allegations or reprisal against whistleblowers, Freedom of Information Act requests, and Congressional inquiries.”

“My personal interest in the [Inspector General’s] ability to make good decisions about the outcomes of cases, and to do so in a timely manner, stems from a case involving a Virginia constituent that took more than two years to be completed, flagrantly violating the 180-day statutory requirement for case disposition,” Warner wrote.

Some notification is better than no notification, even if the "some" notification is extremely minimal and arrives well after the fact. Senator Warner remains underwhelmed.

“The five-sentence notification to Congress did not contain information that appeared to have the benefit of five days of working the issue,” Warner wrote.

The Air Force says there's no evidence of malicious intent, as far as it can tell. But there's also no evidence of competence. Why is it that files related to oversight of a government agency have no apparent redundancy? It's small details like these that show the government generally isn't much interested in policing itself.

If anything's going to be recovered, it's going to be Lockheed's job, and it's already spent a few weeks trying with little success. There may be some files stored locally at bases where investigations originated, but they're likely to be incomplete.

While I understand the inherent nature of bureaucracy makes it difficult to build fully-functioning systems that can handle digital migration with any sort of grace, it's completely incomprehensible that a system containing files collected over the last decade would funnel into a single storage space with no backup. It's one thing if this was just the Air Force's fault.

But this is more Lockheed's fault -- and despite its position as a favored government contractor -- it's also known for its innovation and technical prowess. Neither of those qualities are on display in this public embarrassment. And if it can't recover the data, it's pretty much erasing more than a decade's-worth of government mistakes, abuse, and misconduct. And while no one's going to say anything remotely close to this out loud, there has to be more than a few people relieved to see black marks on their permanent records suddenly converted to a useless tangle of 1s and 0s.

Filed Under: air force, corrupted hard drive, dod, inspector general, investigations
Companies: lockheed martin

Baidu Pushes Back On Chinese Gov't Investigation By Freeing Up Images Related To Tiananmen Square

from the power-play dept

So we've talked a lot about the Great Firewall of China and how it works. Contrary to what many believe, it's not just a giant government bureaucracy blacklisting content, but a huge ecosystem that partially relies on unpredictability and the lack of intermediary liability protections online. That is, rather than directly say "this and that are blocked," the Chinese government will often just let companies know when they've failed to properly block content and threaten them with serious consequences. Because of this, you get a culture of overblocking, to avoid running afoul of the demands. This is one of the reasons why we believe that strong intermediary liability protections are so important. Without them, you're basically begging for widespread censorship to avoid legal consequences.

And, in many ways, it works quite well in China. Yes, sophisticated users know how to use VPNs and proxies and to get around the blocks, but many people do not. But something interesting is happening in China right now, as one of the largest and most successful internet companies there appears to be challenging the censorship regime. First, it's important to recognize that in China, one subject that is absolutely, without question, censored, is anything relating to the Tiananmen Square protests and crackdown of 1989. On the internet in China, it's as if the event never happened. People have tried workarounds, using euphemisms and wordplay, but eventually those get disappeared down the memory hole too. There was even that time the censors banned the term "big yellow duck," after people replaced the famous tanks in the "tank man" photo with giant rubber ducks: But something odd happened yesterday. Suddenly, on Baidu (which is like the Google of China), searches related to the tank man and other symbols of the Tiananmen Square protests were showing up on Baidu. Clay Shirky, who has been living in China recently, posted details on his Twitter feed, which is well worth reading:

China's https://t.co/G1q2OYdfSV unblocks search results for 虫堂臂挡车 (known to us as tank man, from Tiananmen massacre) pic.twitter.com/DU2X3RZnWv

— Clay Shirky (@cshirky) May 6, 2016

It appears that this is something of a reaction to the Chinese government announcing that it will be investigating Baidu's advertising practices, following the death of a young man from cancer, who had kicked up quite a lot of attention after he had tried an "experimental" cancer treatment he discovered via an ad on Baidu. When it didn't work, he blamed Baidu for allowing the ad, and when he passed away there was a public outcry. In response, the government announced plans to investigate Baidu's ad practices. It appears that Baidu loosening the padlocks on Tiananmen Square might be a response to that, which lots of people seem to think is playing with a fire in a manner that will almost certainly leave the company burned.

This is a direct & blatant refusal to play by the rules. Baidu has a lot of power behind the scenes, but even then, this looks like treason.

— Clay Shirky (@cshirky) May 6, 2016

This will probably end soon - hearing from friends in Beijing that some searches are censored again - but it will cause months of trouble.

— Clay Shirky (@cshirky) May 6, 2016

Young, educated Chinese are so used to cat and mouse censorship that when they see something like this, they screenshot immediately.

— Clay Shirky (@cshirky) May 6, 2016

At a conservative guess, there've been a billion screenshots taken of various banned images, jokes, and memes during the last day.

— Clay Shirky (@cshirky) May 6, 2016

Shirky has a lot more to say, including some further speculation that perhaps there was growing tension from last year, after the Chinese government basically made use of Baidu to fire a denial of service at GitHub. The fact that the packets came via Baidu was, as Shirky notes, a PR blackeye for Baidu at a time when the company wants to expand beyond China. Shirky also deleted a tweet that originally said "this has to backfire," noting how central media and internet censorship is to the current regime.

The brief dropping of the censorship appears to be (again, Shirky notes no one knows for sure -- but many people seem to believe) Baidu trying to let the Chinese government know that it has become powerful enough to make trouble for the government, so it's not just a one way street in terms of who holds the power. Of course, that seems like an incredibly risky move to make if you really don't have enough power to stand up to the government.

We may never know all the details of what's going on, but it's a brief, if fascinating, view into some of what's going on in China today with the Great Firewall, and the increasing power of some of its most successful companies. But it's also a reminder of why we should be so thankful for strong intermediary liability protections in the US, and how not having such protections is a sure path to censorship.

Filed Under: ads, censorship, china, clay shirky, great firewall, intermediary liability, investigations, power, search, tank man
Companies: baidu

DOJ Issues New Rules On Espionage Investigations To Keep It From Embarrassing Itself So Often

from the it's-not-so-much-the-bad-prosecutions-as-it-is-people-making-fun-of-us dept

A string of aborted federal prosecutions of alleged "traitors" has the DOJ rethinking its national security strategies. The DOJ went after National Weather Service employee Sherry Chen, who shared public web links about reservoir water funding with a senior Chinese official, who also happened to be Chen's friend. It went after Temple University's physics department head Xi Xiaoxang for allegedly sharing secret semiconductor blueprints with Chinese scientists. The case fell apart once the DOJ was informed by actual experts in the field that the shared blueprints weren't for the item the DOJ claimed they were for. Finally, it went after Robin Raphael, a State Department advisor, who it believed was passing on state secrets to Pakistani officials. At this point, the DOJ's case has dissolved into little more than an accusation that Raphael kept classified documents in her home, something others like Hillary Clinton and General Petraeus have managed to walk from unscathed.

The New York Times reports the DOJ has issued some new guidelines for national security prosecutions -- ones that will hopefully result in fewer misguided prosecutions and destroyed lives.

In a letter last month to federal prosecutors nationwide, Deputy Attorney General Sally Q. Yates said that would change. All cases affecting national security, even tangentially, now require coordination and oversight in Washington. That had always been the intention of the rule, but Ms. Yates made it explicit.

“The term ‘national security issue’ is meant to be a broad one,” she wrote.

Ms. Yates told federal prosecutors that consulting with experienced national security prosecutors in Washington would help “ensure prompt, consistent and effective responses” to national security cases.

This doesn't exactly sound encouraging, but it's a step away from the DOJ's autonomy, which has led to a run of botched prosecutions predicated on next to no evidence. According to the letter shared with the New York Times, the DOJ will now have to consult with "espionage experts" before moving forward with investigations and will face more direct supervision from higher-ranking officials during the investigative process.

This fix -- if that's what it actually is -- will possibly head off misguided investigations before they wreck the lives of people who've done nothing wrong. Sadly, the DOJ doesn't seem to view its high-profile failures as being anything more than a learning experience. There's no effort being made to undo the damage done by the agency during its botched prosecutions. And even though prosecutors dropped all charges against Sherry Chen, the government is still seeking to fire her.

The problem with espionage investigations is that they're a completely opaque process. Tying something to "national security" is a great way to circumvent due process, and the DOJ has used this to pursue extremely dubious cases without having to face any sort of legal challenge until the life-destroying process is well underway. The new guidelines don't appear to open up this process in any appreciable fashion, but any additional eyes on "evidence" collected by the DOJ can only be a good thing as it's obviously terrible at making those determinations on its own.

Filed Under: doj, espionage, investigations, leaks, prosecution, traitors, whistleblowers