Senate Intel Committee Wants Facebook, Twitter & YouTube To Report 'Terrorist-Related' Content

from the NSA:-Home-Version dept

Well, we finally received some surveillance reform with the passage of the USA Freedom Act, which, even with its built-in six-month waiting period is still more surveillance reform than we've seen in the past thirty years. So, of course, the intelligence "community" is seeking to counterbalance its "losses" with gains from the private sector. Self-spying will have to replace government spying, if we're expected to run a secure nation.

Social media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee.

The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.

But there is a silver lining, although it makes absolutely no sense.

It would not require companies to monitor their sites if they do not already do so, said a committee aide…

So… to better secure the nation, companies that already do this thing would be forced to continue doing this thing, even though they've had no problem doing so voluntarily. Those who don't wish to do this won't be forced to do it. The only change then would be the "reporting" aspect, which I imagine is also already in place for most of those voluntarily removing terrorist-related content.

The Senate Intelligence Committee is wasting tax dollars on redundancy, and not the good kind of redundancy that keeps government entities from permanently destroying public records. This is the bad kind of redundancy that is "fighting terrorism" by telling companies to do the thing they already do, unless they don't, in which case, never mind.

The government isn't out of stupid, though.

Although officials are generally pleased to see such accounts taken down, they also worry that threats might go unnoticed.

“In our discussions with parts of the executive branch, they said there have been cases where there have been posts of one sort or another taken down” that might have been useful to know about, the aide said.

On one hand, the government complains that leaving the content up could result in "radicalization" of the few citizens that haven't already been swept up by the FBI's Radicalization Program. On the other, it complains that taking the content down makes it harder to keep an eye on those radicalizing potential terrorists. Its solution is to act like the Internet's Recyle Bin. Toss your terrorist posts here so we can browse them before deletion.

Service providers and tech companies are calling it a violation of users' privacy and state that additional monitoring and adding another step in the takedown process will be technically difficult. National security experts, however, aren't nearly as concerned about privacy violations or technical hurdles. National security is the priority. Everything else is just extraneous noise.

“In a core set of cases, when companies are made aware [of terrorist content], there is real value to security, and potentially even to the companies’ reputation,” said Michael Leiter, a former director of the National Counterterrorism Center, now an executive vice president with Leidos, a national security contractor. “Rules like this always implicate complex First Amendment and corporate interests. But ultimately this is a higher-tech version of ‘See something, say something.’ And in that sense, I believe that there is value.”

The technical problems are skirted completely and the tiny nod towards citizens' privacy is swallowed up by "see something, say something" and "value." Intelligence at any cost -- especially if the majority of the cost is absorbed by civil liberties and the private sector.

This casual dismissal of concerns is unsightly. Here's a Senate Intelligence Committee aide also lowballing the cost to people's rights and tech companies' bottom lines:

The committee aide said the measure presents “a pretty low burden” to companies, who would have to report only activity that has been reported to them. “We have heard from federal law enforcement that it would be useful to have this kind of information,” he said.

Basically, it's the same non-argument Michael Leiter makes: "value" and "use" to government agencies is really the only thing that matters. These other concerns aren't even worthy of a thoughtful response.

It's highly discouraging to see that the same mentality prevails despite nearly two years of damaging (to the intelligence community's public reputation, not its actual capabilities) leaks. These reps of the intel world can't even be bothered to sincerely address the public's concerns. All they can think about is how "useful" this would be to them.

And so, they've put together a half-assed law (in response to a Facebook-"enabled" terrorist attack) that can't even be bothered to enforce the strengths of their very minimal convictions. It's almost as though the intelligence community said, "This would be kind of nice to have. Why don't you guys see if you can get that for us?" If the community truly felt this information was "valuable" and "useful," the proposed law would demand that all companies comply, rather than limiting it to those who voluntarily police their platforms. But it doesn't. It just asks for some companies to do what they already do and for others to add them to the "reported posts" mailing list. It's nothing more than an attempt to create informal government informants with the added bonus of turning voluntary actions into mandatory requirements.

Filed Under: monitoring, reporting, senate intelligence committee, social media, terrorism, user generated content
Companies: facebook, twitter, youtube

Stewart Baker: Journalists Are To Blame For Making The NSA Look Like It's Doing All The Things It's Actually Doing

from the narrative-controller-gripes-about-narrative-he-can't-control dept

Stewart Baker, former NSA General Counsel and unofficial apologist for the DHS, CIA and NSA, is still trying to pin the blame for everything on everyone that isn't a member of these fine American agencies. Privacy activists are to blame for TSA groping. Civil libertarians are to blame for the 9/11 attacks. FISA minimization procedures are also to blame for the 9/11 attacks. Encryption is to blame for the Blackberry's disappearance from the cellphone market. And so on.

Now, in an interview with Wired where he supposedly dispels "cyber-security myths," it's journalists who are to blame for people's distrust of government surveillance. But, you know, not in the flattering sort of way where uncomfortable truths are told and transparency is forced on reluctant, shadowy agencies. No, it's in the bad way where journalists didn't present a "fair" picture of domestic surveillance.

He leads off by saying there's no possible way to hold a "conversation" about surveillance programs because to do so compromises security. We're supposed to just trust the government on this, apparently.

This assertion is challenged by Wired's Caleb Garling, who asks Baker whether Snowden's leaks have served any positive purpose. Baker says there's nothing to be gained because it's journalists -- not the Executive Branch and the intelligence community -- that have been secretive and dishonest.

It was a scam from the start. Greenwald, Poitras, Snowden, and Bart Gellman did exactly what people like them have been accusing the intelligence community of doing for 40 years. They used the classification to tell a partial story in the hopes of shaping the debate, and they succeeded.

They released that order saying the government is scarfing up metadata about all your calls and they withheld, for roughly two weeks,* the [documentation] which they all had which showed all the limitations on that access. Why? Because they didn’t want a debate on the limitations—they wanted to leave the impression that everybody’s phone calls are looked at by NSA and they have succeeded in leaving that impression because of their manipulation of the classified information. That’s a shame.

*OMG ALMOST TWO WHOLE WEEKS

Left unmentioned by Baker is the fact that the government could have stepped in at any time and countered this mis-impression. But it never did. It still doesn't, at least not to any significant extent. When documents are served up by news agencies with access to them, they're routinely greeted with denials, refusals to comment or cliches about "lawful authority" and "oversight." Only very belatedly has the government experimented with transparency, and even in this, there's routinely more redaction than insight.

While it's true that the debate over security vs. privacy will always be somewhat hampered by security concerns, the US government spent years hiding its expanding surveillance programs from everybody, including oversight committees and the FISA Court. It made no effort over the next decade-plus to welcome the public to the debate -- mostly because it had already held this debate in the public's absence shortly after the 9/11 attacks. Now, government apologists like Baker want to blame the press for "skewing" the perception of these agencies and their tactics. But what other view could possibly have been presented? The government -- until June of 2013 -- held (almost) all the cards. Snowden gave journalists a deck of these own and Baker wants to criticize how the press played its limited hand.

Someone who spent years keeping information out of the public's hands (and applauds further efforts to do the same) is in no position to criticize the transparency efforts of others, no matter how subjectively much it looks like activists pitching skewed narratives.

Filed Under: glenn greenwald, journalism, nsa, reporting, stewart baker, surveillance

The Pulitzer Prize In Bullshit FUD Reporting Goes To... The Sunday Times For Its 'Snowden Expose'

from the journalism! dept

Let's start with this. Soon after Daniel Ellsberg was revealed as the source behind the Pentagon Papers, White House officials started spreading rumors that Ellsberg was actually a Soviet spy and that he'd passed on important secrets to the Russians: None of it was true, but it was part of a concerted effort by administration officials to smear Ellsberg as a "Soviet spy" and a "traitor" when all he really did was blow the whistle on things by sharing documents with reporters.

Does that sound familiar? Over the weekend, a big story supposedly broke in the UK's the Sunday Times, citing anonymous UK officials arguing that the Russians and Chinese got access to all the Snowden documents and it had created all sorts of issues, including forcing the UK to remove undercover "agents" from Russia. That story is behind a paywall, but plenty of people have made the text available if you'd like to read the whole thing.

There are all sorts of problems with the report that make it not just difficult to take seriously, but which actually raise a lot more questions about what kind of "reporting" the Sunday Times actually does. It's also worth noting that this particular story comes out just about a week or so after Jason Leopold revealed some of the details of the secret plan to discredit Snowden that was hatched in DC. Even so, the journalism here is beyond shoddy, getting key facts flat out incorrect, allowing key sources to remain anonymous for no reason, and not appearing to raise any questions about the significant holes in the story.

Snowden has made it clear for well over a year that once he gave the documents to the original journalists, he got rid of them and no longer had them -- so he wouldn't even be able to give them to anyone else, even if they wanted them. Yet, the article insists that the Russians got them, and originally included a claim that supposedly ties the documents to Snowden in Moscow:

It is not clear whether Russia and China stole Snowden’s data, or whether he voluntarily handed over his secret documents in order to remain at liberty in Hong Kong and Moscow.

David Miranda, the boyfriend of the Guardian journalist Glenn Greenwald, was seized at Heathrow in 2013 in possession of 58,000 “highly classified” intelligence documents after visiting Snowden in Moscow.

During the ensuing court hearing Oliver Robbins, then deputy national security adviser in the Cabinet Office, said that the release of the information “would do serious damage to UK national security, and ultimately put lives at risk”.

Except, that middle paragraph is simply factually incorrect -- as basically any report on the original detention would have made clear. Miranda had been in Berlin with Laura Poitras, and not in Moscow with Snowden. After this rather important factual error was pointed out repeatedly... the Sunday Times simply deleted it with no retraction or correction. Down the memory hole. Well, except if you have the paper copy: Considering that that point is sort of a key string in the narrative of putting the documents in Russia -- the fact that it is flat out false (despite the easy fact checking) should call into question the rest of the story. But there are even more problems with it the deeper you dig. Craig Murray, a former ambassador and diplomat for the UK has written the best explanation saying that the story "is a lie." He highlights five very serious problems with the story, starting with the fact that the terminology is wrong. In the article, the anonymous government official is quoted as follows:

A senior Downing Street source said: “It is the case that Russians and Chinese have information. It has meant agents have had to be moved and that knowledge of how we operate has stopped us getting vital information."

Except, as Murray notes, no actual government source who was familiar with these things would mistake an "agent" for an "officer."

Yet the schoolboy mistake is made of confusing officers and agents. MI6 is staffed by officers. Their informants are agents. In real life, James Bond would not be a secret agent. He would be an MI6 officer. Those whose knowledge comes from fiction frequently confuse the two. Nobody really working with the intelligence services would do so, as the Sunday Times source does. The story is a lie.

He also dismisses the "blood on his hands" money quote given in the article. That line was directed at Snowden -- though, it was almost immediately undercut within the same exact article by someone noting "there is no evidence of anyone being harmed." It's almost as if no one actually bothered to think through the propaganda message. Murray points out that the idea that any officers would be in danger is hogwash. Beyond the fact that the Russian and Chinese don't kill western spies (they just kick them out of the country), there's the simple fact that such info would never be in the documents Snowden had:

Rule No.1 in both the CIA and MI6 is that agents’ identities are never, ever written down, neither their names nor a description that would allow them to be identified.

This same point is further confirmed by Ryan Gallagher, one of the journalists who does have access to the Snowden files and says that there is no such information in them.

This was a surprise to me because I've reviewed the Snowden documents and I've never seen anything in there naming active MI6 agents. Were the agents pulled out as a precautionary measure? Keeping in mind that the UK government does not actually know exactly what Snowden leaked, how do these officials know there were documents in there that implicated MI6 operatives and live operations in the first place?

Murray further notes that the Russians are already pretty sure they know who the UK's spies are (and vice versa) and even if they were revealed in the documents, which he doesn't think is true, there'd be no reason to remove anyone anyway.

The Sunday Times piece further repeats the long repudiated claim that Snowden's cache included 1.7 million documents -- a number that even the NSA now admits was bunk and based solely on the number of documents he "touched," not those Snowden actually took.

Then there's this point, raised by security professor Matthew Green: If the intelligence agencies really believed that Snowden was carrying such damaging documents on his person, why would they strand him in Moscow by pulling his passport? Another potential problem: at one point, the article implies that Snowden may have handed the documents over as part of a "deal" with the Russian or Chinese, but in another part of the article, it discusses how the Russians and Chinese cracked the encryption on the stash. So which is it? Did he hand them over, or were they encrypted?

The whole thing is such a shoddy piece of propaganda that it seems almost hilarious... and would be if actual serious news sites weren't repeating the claims, often with little question. The BBC was quick to put up a piece repeating the claims -- though it has since added a few dissenting viewpoints. Many other UK tabloids have more or less repeated the claims. The only paper that seems to be strongly pushing back is The Guardian (which published the first Snowden revelation and many later ones as well). It has been raising lots of questions about the original reporting, demanding answers from the UK government about the claims and actually willing to call out the report as "low on facts, high on assertions."

Is it possible that others have access to these documents? Sure. Of course, the world itself has seen many of them, thanks to reporters revealing them publicly (something Snowden himself never did).

Still, even back when Snowden was in Hong Kong, intelligence community defenders insisted it meant that China had the documents. And the second he was in Moscow, they insisted that Russia had them too. In this case, it honestly sounds like the naive reporters at the Sunday Times took that "speculation" and wrote an entire story about it, searching for quotes that would confirm the thesis, but not doing any actual journalistic activity. So they got their story, and it's now quite easy to poke it full of very large holes.

Of course the timing on this is even more suspect. It comes out just as a report was published in the UK that slammed some aspects of government surveillance, and it seems noteworthy that right before this, there was a sudden upsurge in ridiculous and slightly unhinged fear mongering about Snowden himself -- none of which comes with any actual evidence, only angry speculation. It's almost as if governments pushing for greater surveillance powers might mount a coordinated propaganda campaign to smear the one guy who has been exposing their bullshit.

Filed Under: china, ed snowden, journalism, leaks, propaganda, reporting, russia, surveillance, uk
Companies: sunday times

Missouri Prosecutor Issues Subpoena To Reporters Demanding Emails They Had With Her Ex-Husband

from the abuse-of-power? dept

The story of Russ Faria is already fairly bizarre. Convicted of killing his wife, he was just granted a retrial after a news investigation by the St. Louis Post Dispatch and the local Fox affiliate turned up serious questions about the original prosecution and newly discovered evidence that was not presented at the original trial. But that's not what caught my attention about the story. It appears that just before the judge was going to decide whether or not there would be a new trial, the prosecutor in the case, Leah Askey, issued subpoenas to the two main journalists involved in the investigation, demanding all texts and emails between them and Askey's ex-husband.

The full story is super confusing, but it appears to involve allegations that one of the witnesses used against Faria has been accused, by some, of actually having an affair with Askey:

The appeals court also mentioned an allegation that Lincoln County Prosecuting Attorney Leah Askey was having an undisclosed romance with a police officer who testified against Faria.

Askey has denied having a relationship with the married officer, and issued subpoenas for Friday’s hearing lining up witnesses who include her ex-husband, stepbrother, a handwriting expert and two news reporters. She also had listed herself as a witness, until a defense attorney suggested that she be removed from the case for doing so.

The reporters in question, Robert Patrick from the St. Louis Post Dispatch and Chris Hayes from the Fox 2 affiliate had to get their lawyers involved to try to quash the subpoenas:

Subpoenas for testimony and documents also were served on reporters Chris Hayes of Fox 2 News and Robert Patrick of the Post-Dispatch, who worked together on investigating the Faria trial and civil litigation by Betsy Faria’s daughters against Hupp.

Lawyers for both reporters filed motions, still pending, to quash the subpoenas as a violation of the First Amendment, Missouri Constitution and common law “reporter’s privilege.” The motions also say that there “is strong reason to believe” the subpoenas were issued “with the intent to stifle critics.”

You think? Isn't there a massive conflict of interest when a prosecutor who is being accused of questionable conduct in a case uses her power as a prosecutor to not just issue subpoenas over reporters' sources, but especially when some of those sources are her own ex-husband? Wouldn't standard practice be to immediately recuse yourself from the situation due to the incredibly obvious conflict of interest?

After granting the new trial, Askey apparently asked the judge if it had anything to do with the reports of her own relationship with the witness, and the judge said it was about the other evidence. The witness in question had been called to the stand and denied any such relationship.

Askey was the first to raise the romance issue in court Friday. It was settled when the investigator took the witness stand and denied any romantic relationship.

After Ohmer announced his decision to give Faria a new trial, Askey asked whether he was basing that decision solely on the Hupp material or whether he had found any evidence supporting the relationship.

“I did not. I did not touch that,” he said, saying that the only issue was Hupp.

So it appears the issue involving her ex-husband and the reporters has likely been put to rest, but still, it should raise serious questions about why no one stepped in to prevent it from happening in the first place.

Filed Under: chris hayes, journalism, leah askey, lincoln county, missouri, reporting, robert patrick, russ faria, scandal, subpoena

The NYTimes Plays Its Role In 'Keeping Fear Alive' With Pure Fearmongering Over PATRIOT Act Renewal

from the all-the-propaganda-that's-fit-to-print dept

Earlier this year, we wrote about the psychological games that surveillance state defenders play -- both on themselves and the public -- to continually ratchet up programs that show no evidence of working. In it, we pointed to a great post by the ACLU's Kade Crockford, highlighting a rare case where an FBI official was forthright about what's really going on:

If you’re submitting budget proposals for a law enforcement agency, for an intelligence agency, you’re not going to submit the proposal that ‘We won the war on terror and everything’s great,’ cuz the first thing that’s gonna happen is your budget’s gonna be cut in half. You know, it’s my opposite of Jesse Jackson’s ‘Keep Hope Alive’—it’s ‘Keep Fear Alive.’ Keep it alive.

Keep fear alive. Keep it alive. And, apparently, one great way to do that is to basically get the NY Times to run pure government propaganda in the form of simply repeating anonymous fearmongering from administration officials who set up a call for this exact purpose:

“What you’re doing, essentially, is you’re playing national security Russian roulette,” one senior administration official said of allowing the powers to lapse. That prospect appears increasingly likely with the measure, the USA Freedom Act, stalled and lawmakers in their home states and districts during a congressional recess.

“We’re in uncharted waters,” another senior member of the administration said at a briefing organized by the White House, where three officials spoke with reporters about the consequences of inaction by Congress. “We have not had to confront addressing the terrorist threat without these authorities, and it’s going to be fraught with unnecessary risk.”

First, note the anonymity, even though this isn't a leak or a reporter sniffing out a story and needing to protect sources. This is a "briefing organized by the White House" where they play stupid games in demanding anonymity for the sole purpose of avoiding accountability. Second, note the blatant fearmongering without any specifics. It's pure "keep fear alive" in action -- aided along by a stenographer at the NY Times.

All the propaganda that's fit to print.

As the Intercept rightly notes, this piece was published without even the slightest critical look into the statements by those officials:

Worst of all, it’s all published uncritically. There’s not a syllable challenging or questioning any of these dire warnings. No Patriot Act opponent is heard from. None of the multiple facts exposing these scare tactics as manipulative and false are referenced.

It’s just government propaganda masquerading as a news article, where anonymous officials warn the country that they will die if the Patriot Act isn’t renewed immediately, while decreeing that Congressional critics of the law will have blood on their hands due to their refusal to obey. In other words, it’s a perfect museum exhibit for how government officials in both parties and American media outlets have collaborated for 15 years to enact one radical measure after the next and destroy any chance for rational discourse about it.

Once again, two separate government review boards, as well as judges who have looked over the program and Senators who have been briefed on the full extent of the program in question, have all said that the bulk metadata collection program has not proven useful in stopping terrorist attacks. At all.

And, of course, blatant fearmongering without comparing the costs and (lack of) benefits is completely useless. Again, it could be taken to any extreme. Would putting real-time cameras hovering over every living human being 24/7 allow the government to find out who was plotting a terrorist attack? In theory, yes. But everyone would consider it a gross violation of privacy. Just because a tool might be useful doesn't mean that it's the right thing to do. So, here we have a case of a "tool" that is both a clear violation of our civil liberties and one that hasn't even been found to be useful.

Yet why is the NY Times -- the so-called "paper of record" -- repeating blindly government propaganda about how important it is to keep the program alive? Keep fear alive, NY Times. Keep it alive.

Filed Under: journalism, keep fear alive, patriot act, reporting, section 215, stenography

New York District Court Denies Immunity To NYPD Officers Who Arrested A Citizen For Filming Them

from the no-immunity-for-deliberate-obtuseness dept

Some NYPD officers have continued to cling to the belief that citizens aren't allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC'd law enforcement in general noted that "the justification for [filming police] is firmly rooted in longstanding First Amendment principles." (The footnote appended to this added: "There is no binding precedence to the contrary.") The NYPD's own Patrol Guide states this:

“[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others.

The NYPD's chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn't interfere with duties or operations.

It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity.

The facts behind the suit are this:

Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct.

Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham's supposed "failure to disperse" justified the charge. The court found otherwise:

The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse.

The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a "hazard" by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity.

In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case.

Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.”

The "no one directly -- at that moment -- told us not to" defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn't need a copy of the Patrol Guide to arrive at the same endpoint.

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

The court then goes on to point out that the First Amendment rights the officers claimed were "insufficiently defined" had been clearly established by years of precedent rulings.

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.

Now, this is still far from the final ruling, so there's no precedent specific to the NYPD's territory set at this point. But the court's denial of qualified immunity in respect to Higginbotham's First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won't be entertained by this court. The plaintiff's suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record.

Filed Under: arresting citizens, filming police, first amendment, immunity, journalism, nypd, photographing police, police, reporting

Ex-CIA Officials To New York Times: Don't Try To Hold The CIA Accountable. The CIA Will Hold The CIA Accountable.

from the w/special-guest-Michael-D'Andrea,-drone-strike-architect dept

Prominent alumni of the intelligence community have a problem with the New York Times publishing the name of the CIA's drone strike "architect." Although Michael D'Andrea's connection to the program had been sussed out nearly two years earlier and was apparently common knowledge to the governments of countries CIA drones launched from, the CIA still didn't want his name publicly disclosed. Their officials pushed New York Times executive editor Dean Baquet. He pushed back.

Now, a letter to the editor signed by 20 ex-CIA officials is arguing that Baquet was wrong to do so. The attendant irony of known "leakers" Leon Panetta and David Petraeus signing this indignant ode to CIA secrecy can't be allowed to pass without noting. Panetta handed off plenty of classified information, including names of personnel operating under "cover," to the makers of Zero Dark Thirty. Petraeus handed over eight notebooks full of sensitive info to his mistress/biographer. Both have escaped any serious repercussions for their actions. But they're righteously pissed that Baquet published the name of the person overseeing the CIA's drone strike program.

The letter is a mess. If it's meant to make a solid argument for members of media acquiescing to every government request to withhold information, it fails spectacularly. If anything, it helps demonstrate why those whose powers are shrouded by layers of opacity should be exposed more often.

When your lead-off acknowledges that you're more angry than informed, you're going to fail to land solid blows. Pointing to Dean Baquet's interview with the Lawfare blog in which he defended his actions, the 20 ex-CIA officials all agree they really haven't done their homework.

We profoundly disagree — not because we have analyzed this particular case (we have not), but because in our view he misstates the purpose of cover generally.

But rather than moving on to correcting this perceived error, the letter instead shifts to arguing that the law Baquet didn't violate should actually have been violated, if only Congress hadn't have screwed up more than three decades ago.

Congress overwhelmingly enacted the Intelligence Identities Protection Act of 1982 precisely to protect the dedicated men and women whose lives would be at risk if their names became widely publicized.

What Congress could not have anticipated at the time, of course, is that any name published in The Times would reside forever on the Internet, searchable by any terrorist with a laptop. It is true that certain foreign governments may know their names, but that is altogether different from making the name accessible to ISIS, Al Qaeda and every other murderer on the planet.

The law contains loopholes that apply to Baquet's actions, as Lawfare's Jack Goldsmith points out. These ex-officials are now stating these loopholes shouldn't apply. Because the Internet. And this assertion is backed up by the portrayal of said internet as infested with "every other murderer on the planet." This hyperbole is expected, as is the intelligence community's confidence that it -- and only it -- knows what Congress did or didn't foresee when passing laws related to surveillance and spycraft.

In this particular case, Congress couldn't have foreseen an easily-searchable internet when passing a 1982 law. Fair enough, I suppose, but governing entities like Congress and the judicial system are immediately granted Nostradamus-esque powers of foresight whenever it works to the advantage of the entities performing long-delayed interpretations of Congressional intent. This same "power" is revoked the moment it becomes inconvenient to those seeking expanded powers with a minimum of accountability.

The letter then goes on to claim the press has no business attempting to increase government accountability. It's doing a fine job of policing itself, thank you very much.

Officials who work on covert operations do not escape accountability. Their actions are carefully reviewed by the C.I.A.’s general counsel, the inspector general, White House officials, congressional overseers and Justice Department attorneys.

Would this be the same CIA general counsel that cleared the CIA of all wrongdoing in the Senate spying debacle? Are these the same DOJ attorneys who couldn't be bothered to examine the Senate's claims of CIA spying during the creation of the Torture Report? Is this the same government that finally admitted it was wrong to torture people but refused to hold anyone accountable for the CIA's abuse of detainees? Is this the same vaunted oversight that seemed constantly surprised by the programs detailed in Snowden's leaks?

"Oversight" is a word covert agencies use when they don't want anyone taking a closer look at their programs or operations. When these officials point to "oversight," all they're really pointing to is the skeletal framework that remains after years and years of deliberately weakening oversight standards and processes. No one believes the government has the capability -- much less the desire -- to hold these agencies accountable for their actions. And the agencies know this.

The New York Time's refusal to grant continued secrecy to the man behind the agency's transformation into an efficient, impersonal killing machine may not result in direct responses from the oversight these officials claim works oh so well, but at least it prevents them from pretending they have no idea who was behind the program.

Filed Under: cia, classified, david petreaus, drones, journalism, leaks, leon panetta, michael d'andrea, reporting, under cover
Companies: ny times

PGA Joins NHL In Yanking Reporter Credentials Over Use Of Periscope On Golfers Practicing

from the out-of-bounds dept

Well well, this whole anti-Periscope app stuff is certainly becoming a thing. At first it was Hollywood that declared war on the livestreaming app and I said nothing, because I'm pretty sure Hollywood once argued that kittens were piracy-beasts because they might possibly accidentally type "torrent" onto their owners' keyboards whilst trying to get some attention. Then the NHL banned the media's use of Periscope during warmups, but I said nothing because the NHL never misses an opportunity to miss an opportunity when it comes to generating interest in the league. Then the boxing world went after Periscope streams of the Mayweather v. Pacquiao fight, but I said nothing because I honestly wasn't aware that boxing was still a thing nowadays. And now that the PGA has come after my potential Periscoping-golf-enjoyment by threatening to yank journalist credentials, who is left to stand up for me?

Golf reporter Stephanie Wei lost her PGA Tour credentials after she used mobile live-streaming app Periscope to show golfers teeing off in practice at TPC Harding Park last Monday. The tour revoked her access “for the remainder of the season” on Wednesday.

Wei wrote about the incident on her site. She admitted that she had received a warning for Instagramming a video of Tiger Woods’s round at the Phoenix Open earlier this year, but considered this to be a different circumstance since she was filming a practice round that wouldn’t have been televised anyway.

As was the case with the NHL ban of the app, the fact that the streams consisted of footage that was never going to be broadcast apparently didn't matter a lick to the PGA. They simply saw someone using the app and decided to go all Hulk Smash on it. Wei noted that she specifically streamed footage she knew wouldn't make the air because she fully acknowledges that the PGA has broadcasting partners generating a great deal of revenue for golf and that the league would be within its rights to protect all that income. But she then argues that streaming practice sessions that wouldn't make television could only help golf in generating more interest.

The PGA responded with a double-bogey's worth of dumb.

PGA Tour chief marketing officer Ty Votaw didn’t see a difference, telling Golf.com that when Wei posts “unauthorized videos, she’s stealing.”

Putting aside the misuse of the term...stealing what, exactly? There's no consequence here, other than the lost potential to promote the sport and the PGA through streaming that doesn't touch the broadcast footage. What did the PGA have that Wei "stole" from them? To yank the credentials of a reporter over this not only removes potential interest, but it also builds animosity with the press. I would have thought that someone involved in marketing the PGA would know better than this.

Filed Under: golf, livestreaming, pga, reporting, stephanie wei
Companies: periscope, pga, twitter

NHL Bans Use Of Periscope Streaming By Media During Warmups And Intermissions

from the why? dept

Anyone interested in the business of professional sports already knows how important broadcasting rights and revenues are. One needs only look at the insane amount of money generated for Major League Baseball through broadcast contracts to see how lucrative they can be, or the relative indifference the NFL has over the surprising decline of game attendance to see where these leagues think their money is made. The story with the NHL is slightly different, in part because the lucrative television contracts just aren't there for the league (except in Canada, duh), and in part because if any major sport could benefit from wider distribution to become more lucrative it's the NHL.

But that doesn't mean the NHL won't play the fun-police when it comes to theoretically protecting its product. As some journalists have recently discovered, the league is going so far as to make sure credentialed members of the media aren't using apps like Periscope and Meerkat during warmups and intermissions. The way these apps work is to allow the user to produce snippets of live-streamed video/audio, perfect for formats like Twitter. Some enterprising media members found interesting ways to use them, such as Yahoo Sports' Greg Wyshynski.

So the question then became how I could use this technology during coverage. At Game 1 of the New York Rangers’ series against the Pittsburgh Penguins, I did live Periscope intermission coverage. That seemed OK. Some of the other people in the press box that were Periscoping the pregame skate or postgame comments? That seemed a little more dicey, given the NHL’s rules about shooting video at events where big media companies held the broadcast rights.

It seemed like there was a gray area. I can promise you that credentialed media members covering a sport don't want to do much to hurt the leagues they cover generally, given that's where their money is made. But you can certainly see useful ways media members could use Periscope and Meerkat to cover games in ways that could only help the league through increased visibility. Commentary and stand-ups during warmups, for instance, or breakdowns from media members in between periods. Those would be quite useful.

The NHL disagrees. Far from seeing any gray area, the league sent notice to media members that using the apps was banned completely.

We have been advised that certain individuals attending NHL games pursuant to credentialed access are streaming live footage from inside NHL arenas before, during and after NHL games using technology offered by companies such as Periscope and Meerkat. As a reminder, NHL media credentials prohibit any “unauthorized use of any transmission, picture or other depiction or description of game action, game information, player interview or other arena activity . . . without prior written approval of” NHL or the team as applicable.Without limiting the generality of the credential language, any streaming of footage in violation of the NHL’s Broadcast Guidelines (including, for example, live streaming inside the arena less than 30 minutes before the start of the game) and Media Access Policy is expressly prohibited.

So live-streaming warmups and intermissions is just as banned as in-game streaming. Why? Well, because some NHL teams are also using those apps and want to retain control. Control of the footage, the message, the information that gets released and the live commentary that might go along with it. Even during times when the NHL's product is ostensibly not in play, the ban remains in place. And that's too bad. For a sport and league that I truly love, it would be nice if they could see the opportunity in all of this, if only the league would relinquish just a bit of control. Unfortunately, when it comes to forward-thinking about the consumption of its game, the NHL never seems to miss an opportunity to miss an opportunity.

Filed Under: hockey, journalism, live streaming, livestreaming, reporting
Companies: meerkat, nhl, periscope

Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing

from the that's-not-how-the-law-works-at-all dept

Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott had apparently brought on a publicist, Max Markson, who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a "fair usage fee." As we pointed out, this was idiotic -- and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that "copyright experts agreed" that they had a point. That's flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson's interpretation of copyright law is laughably wrong.

Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law is there such a thing as a "fair usage fee") and rather insisted that he's obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He's also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:

“Any footage has to be owned by somebody. It’s not like it’s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it’s the same in this case.”

He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.

“Fair use doesn’t really apply to images,” he said. “There’s a fair use argument on the video, but there’s a very clear copyright on the use of the photographs.”

The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means "in the public domain." It does not. Things in the public domain don't need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That's why there is no such thing as a "fair usage fee." Second, the idea that "fair use doesn't really apply to images" is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn't even remotely arguable. Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.

And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:

The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.

Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. The Guardian's reporter, Jon Swaine, apparently called up Markson's employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.

Asked why they believed the footage needed to be licenced, Nissen Gray said: “We have discussed with our copyright attorneys and ‘fair use’ doesn’t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.”

I'm curious who these "copyright attorneys" are, because they're not just wrong, they're so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn't seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he's wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.

Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to "cash in." However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what's being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers, and they quite likely will hit back seeking a declaratory judgment for non-infringement.

* In further conversations, Markson also mocked me for caring about this, talking about how he's "closing deals daily!" as if he's proud of the fact that he's directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.

Filed Under: cease and desist, copyright, fair use, journalism, max markson, reporting, walter scott
Companies: markson sparks, the guardian