Clearview Suffers Brief Bout Of Better Judgment, Drops Subpoena Demanding Activists' Communications With Journalists

from the keep-on-sucking dept

Just a few days ago, Clearview -- the company that scrapes the web to build a facial recognition database it sells to law enforcement, government agencies around the world, and a number of private parties -- decided to make itself even less likable.

It decided to subpoena transparency activists Open The Government, demanding copies of all FOIA requests it had made requesting info about Clearview. It also, more disturbingly, demanded copies of OTG's communications with journalists, clearly indicating it felt First Amendment protections were something it should enjoy, but shouldn't be extended to its critics.

It really wasn't a step Clearview needed to take… for several reasons. First of all, Clearview's reputation is pure dog shit at the moment. It's unlikely to improve unless the company pulls the plug on its product and disbands. A move like this only earns it more (deserved) disdain and hatred. What it's not going to do -- even if successful -- is deter future criticism of the business and its scraped-together facial recognition product.

Second, OTG was not a party to the lawsuit. Clearview has no right to demand these documents from a non-party, especially communications between it and journalists… journalists who are also not a party to the lawsuit Clearview is facing.

Third, if Clearview wanted copies of OTG's FOIA requests, all it had to do is visit OTG's MuckRock page and download all of its publicly accessible requests and responses.

There's some good news, though. Shortly after having shot itself in the face, Clearview had second thoughts about the self-inflicted wound it had just sustained. Here's Alexandra Levine for Politico.

Facial recognition company Clearview AI is dropping the subpoenas it served recently to some of the groups that first exposed its work with law enforcement — legal demands that sought the organizations’ correspondence with journalists and other records.

The best move would have been to never issue the subpoenas at all, especially given the First Amendment implications of attempting to pry loose communications between activists and journalists. This withdrawal is a distant second on the list of "Smart Things to Do."

And here's the rationale for the decision, straight from the mouth of Clearview's founder:

Clearview CEO Hoan Ton-That told POLITICO that “on further reflection about the scope of the subpoenas, and my strong view of freedom of the press, we have decided to withdraw the subpoenas served on Open the Government and its associates.”

I imagine that "reflection" showed a badly maimed face mouthing the word "why" after taking the full impact of an unforced error. This should have been the first response to the suggestion of subpoenaing non-parties and demanding copies of their conversations with journalists. It should have been offered by Clearview's legal team. And if those bright minds failed to comprehend the collateral damage this move would inflict on the First Amendment (not to mention the fact that Clearview would be sitting at ground zero when its own bomb went off), the genius who came up with the idea of treating millions of internet users as fodder for unproven facial recognition tech should have been able to see doing this was a terrible idea.

Then again, it may just be impossible for Clearview and its principals (note the spelling -- "principles" are different and not possessed by Clearview) to get a firm grasp on the obvious if it can't easily be scraped from content created by people with far more common sense than its founder and legal reps.

Filed Under: activism, facial recognition, foia, intimidation, journalism, subpoena, surveillance, transparency
Companies: clearview, open the government

Clearview Tosses Subpoena To Non-Party Transparency Advocates, Demands Copies Of Communications With Journalists

from the maybe-just-scrape-gmail-you-fucking-hacks dept

Clearview is currently being sued by a small percentage of its database of scraped personal info. It is also being sued by a few state officials over privacy law violations. It is (also) also being side-eyed closely by the federal government, which has not initiated an official investigation, but has expressed its disappointment in legislative ways.

One of dozens of lawsuits Clearview is hopefully being eventually bankrupted by has resulted in a bit of the old intimidation tactics. Clearview has made some inadvertently amusing arguments in court about its alleged right to do whatever the hell it wants to amass secondhand data as well as market access to whoever the hell it wants whenever the hell it wants. We'll see how that all plays out. In the meantime, Clearview is hoping to make others as miserable as it is. And if that means doing terrible things to long-recognized First Amendment protections, so be it.

Transparency advocate Open The Government has been hit with a subpoena from Clearview, which is defending itself against several plaintiffs alleging state law violations in an Illinois-based class action lawsuit. With its livelihood being barely threatened by an ongoing suit, Clearview has decided to threaten Open the Government, which is not involved in the lawsuit in any way.

In January 2020, Open The Government and MuckRock used public records requests to expose a start-up that was scraping Americans’ images and personal information from social media sites, and selling the data to law enforcement agencies. Now, that company, Clearview AI, has subpoenaed OTG and one of its employees to turn over all of the responses we received to Freedom of Information Act requests and all First Amendment protected communications we have had with the media about this matter.

This would be ironic if Clearview were capable of irony. But it isn't. Clearview claims it has a First Amendment right to scrape sites, clear cut data, and serve it up to whoever would like to pay for access. When it comes to the First Amendment rights and protections of others, it simply doesn't care.

As OTG points out, a bunch of what Clearview is demanding with this subpoena could be had simply by accessing its account at public records request clearinghouse Muckrock, where all of its requests targeting Clearview are located.

As for the rest of it -- the communications with the media -- Clearview has no right to access those… for several reasons. First, these are protected under the First Amendment. Second, THESE ARE PROTECTED UNDER THE FIRST AMENDMENT. Third, OTG and its media connections are not a party to this lawsuit. Fourth, if Clearview wants to know what government agencies know about it, it could search its own internal communications and, if it feels it's still missing something, file FOIA requests just like OTG did.

Clearview can defend itself without brushing aside the First Amendment to demand communications from a non-party to another non-party. If it's feeling the heat because its business model is built on site scraping and a complete disregard for due diligence, so be it. It dug this grave with billions of scraped images. That it refused to consider the implications of its acts under state and federal law is its own fault. Targeting sources of information that have contributed to months of negative coverage isn't going to make Clearview any more likeable or any more capable at defending itself in court.

Filed Under: foia, journalism, subpoena, transparency
Companies: clearview, open the government

Litecoin Walmart Hoax Easily Exploits A Lazy U.S. Press

from the stop-and-think dept

You might have seen a week or two ago how everybody absolutely freaked out after a Rolling Stone article falsely reported that Ivermectin overdoses were causing massive congestion at Oklahoma hospitals. In reality, the truth wound up being something substantively less than that (Mathew Ingram at Columbia Journalism Review has a good breakdown here). The whole mess began after a local news organization published a story that was misinterpreted by a bunch of national outlets who "aggregated" and repackaged it. The screw up was then picked up in turn by conservative commentators eager to point out that the press was specifically out to get them.

But that wasn't true either. These kinds of aggregation screw ups probably happen a hundred times a day. They usually involve a bunch of click-hungry sites amplifying a story without bothering to check if the original story was true (in the case of the Ivermectin story, countless outlets, including MSNBC, didn't bother to even read the original interview with the local doctor). These screw ups aren't necessarily malicious, they're just representative of a broken U.S. ad-based press for which speed, inaccuracy, and inflammatory headlines make more money than measured, sometimes boring, often complicated truth. As Mike discussed, confirmation bias plays a huge role in the whole mess.

But it really can't be reiterated how often this kind of cock up happens without the level of breathy introspection that accompanied the Ivermectin/Oklahoma error. For example, this week it wasn't particularly hard for some hoaxers to release a completely fake press release (using GlobeNewswire) stating that Walmart had partnered with the cryptocurrency Litecoin. Countless journalists and news outlets leeched onto the press release and wrote elaborate stories and hot takes, without a single one bothering to confirm that any of the facts in the release were true.

They weren't, and everybody in the chain, from GlobeNewswire to a long line of outlets, had to apologize about screwing up so badly. Reuters was one of several news outlets forced to withdraw the story, then try and pretend it never happened:

"GlobeNewswire is owned by telecommunications company Intrado. It issued a “notice to disregard” the original release at 11:18 a.m. ET.

A number of media organizations, including CNBC, sent headlines on the announcement. Shares of Walmart had little movement on it. Litecoin was down about 2.2%, according to Coin Metrics.

GlobeNewswire said that a fraudulent user account was used to issue the release.

While everybody makes mistakes, basic journalistic norms involve asking the company or person you're writing about for comment. Even doing aggregation (which can serve an important function of adding context to other peoples' stories, especially if you know more about the subject than the poorly-paid 22-year-old who originally wrote it) involves doing some research, or at the very least developing a good gut instinct to ferret out stories that don't feel right or aren't properly supported by any evidence. In this case, bizarrely, even the Litecoin Foundation appeared to have been taken it by the hoax...about its own product:

"Litecoin tweeted the press release from its official account at 9:50 a.m. ET. CNBC’s report on the what turned out to be fake was published five minutes later. In a statement Monday afternoon, the Litecoin Foundation said a social media team member “was a little too eager and shared the story from the Litecoin Twitter account. This was quickly deleted and we have taken steps to correct future issues."

The Rolling Stone Ivermectin story got a lot of media play because partisan pundits leaped on it as proof positive that it was evidence of unfair bias against conservatives. But the real culprit is the advertising-based media ecosystem that prioritizes speed and headlines over substance, depth, truth, and sometimes even basic competency. And that's exploitable by everyone from ordinary trolls and partisan hacks to poorly-regulated industries and giant corporations. And while everybody shakes their fist at the problem insisting it supports their preconceived personal biases, few of those same folks really want to spend much time thinking about creative funding alternatives for a clearly busted, ad-engagement based media system.

Filed Under: hoax, journalism, litecoin
Companies: litecoin foundation, walmart

NY Times And Washington Post Criticize Facebook Because The Chicago Tribune Had A Terrible Headline

from the wait,-whose-fault-is-it-now? dept

I'm going to try, once again, to do that stupid thing where I try to express a nuanced point on the internet, where there's a high likelihood of it being misunderstood. So, consider this opening a warning that you should read this entire article to try to get at the larger point.

And, along those lines, there are two parts to this story, and while much of it is going to point some fingers at the NY Times and Washington Post in how they presented a story that suggested blaming Facebook for something that isn't actually a Facebook issue, that shouldn't be seen as letting Facebook off the hook, because it doesn't come out of this story looking very good either. Basically, this is a story that shows how much more complex and complicated our information ecosystem is when it comes to misinformation, and simple blame games aren't necessarily that effective.

But, first, some background: for a long time, NY Times reporter Kevin Roose has used Facebook's own CrowdTangle tool to highlight what content on Facebook was getting the most engagement. It is a consistently useful tool in showing how claims that Facebook has an "anti-conservative bias" is bullshit. It constantly shows top "conservative" personalities like Ben Shapiro, Don Bongino, and others as having the most engagement on the site.

For reasons I don't fully understand, Facebook has always hated this, and has spent so much wasted effort repeatedly insisting that Roose's tracking of the numbers is not telling an accurate picture of what's happening on the site (even though he's using Facebook's own tool). Last week, Facebook launched a new offering which it seemed to hope would change the narrative on this. It's called the "Widely Viewed Content Report" (catchy!). And, obviously, it is true that "engagement" (what CrowdTangle shows) is not the be-all, end-all of what's happening on the site, but it is kinda weird how annoyed Facebook gets about the lists. You can almost hear the defensiveness in how they introduced this new report:

In this first quarterly report, our goal is to provide clarity around what people see in their Facebook News Feed, the different content types that appear in their Feed and the most-viewed domains, links, Pages and posts on the platform during the quarter. We believe this new report, when paired with the engagement data available in CrowdTangle, represents a more complete picture of what people see on Facebook. We plan to expand the scope of this report in future iterations.

And, to be fair, there is a bunch of interesting stuff in this report. It shows that, despite all the focus on Facebook links to outside sources, apparently 87% of content viewed in Facebook's News Feed doesn't even link to an outside source. And much of the rest of the report really leans hard on the fact that for most people, politics and news (and disinformation) are not a huge part of their Facebook experience. That's certainly very interesting, though it would be nicer if Facebook exposed the raw data, rather than doing this as quarterly reports.

The list doesn't just make Facebook look good though. As disinfo reporter Brandy Zadrozny dug out, one of the top links is a subscription link to the propaganda peddling Epoch Times, which is technically banned from advertising on Facebook, but the publication figured out something of a workaround through viral posts:

Anyway, a couple days after Facebook released all this, the NY Times came out with what is a legitimate scoop: Facebook had actually planned to release a version of this report earlier this year, but (according to the article) shelved it when the most-viewed link didn't look very good for Facebook. From the article:

In that report, a copy of which was provided to The Times, the most-viewed link was a news article with a headline suggesting that the coronavirus vaccine was at fault for the death of a Florida doctor. The report also showed that a Facebook page for The Epoch Times, an anti-China newspaper that spreads right-wing conspiracy theories, was the 19th-most-popular page on the platform for the first three months of 2021.

The report was nearing public release when some executives, including Alex Schultz, Facebook’s vice president of analytics and chief marketing officer, debated whether it would cause a public relations problem, according to the internal emails. The company decided to shelve it.

Now, the fact that Facebook would shelve the report because of the possible optics is bad. Flat out. No question about it at all. It also demonstrates why having to sit around and rely on Facebook to release this report every quarter rather than just sharing the data is always going to be questionable and not engender much trust.

But... (and this is important), the NY Times piece kinda buries something rather important here. That "most-viewed link" is not to some random disinformation site, or sketchy propaganda spewing news organization. It was... to an article from the (Pulitzer Prize winning) South Florida Sun Sentinel and then republished in the Chicago Tribune. The article was about a doctor who died after getting the COVID vaccine, and the title highlighted the "the CDC is investigating why." Notably, the NY Times published a very similar story to the one in the Chicago Tribune.

A day after the NY Times article, the Washington Post also published an article with the blaring headline: Facebook says post that cast doubt on covid-19 vaccine was most popular on the platform from January through March. It, too, completely buries the fact that the "casting doubt" came from the Sun Sentinel and Chicago Tribune.

The NY Times mentions the source of the "viral" article in the 13th paragraph. The WaPo article mentions it in the 5th paragraph.

To be honest, the NY Times article and framing is more defensible. It focuses on Facebook's (highly questionable) decision to shelve the report until there was a better link in the top slot. The reporters on the Times piece -- Davey Alba and Ryan Mac, both of whom, I should note, I think are generally top notch reporters on the tech beat -- have taken issue with people calling out this aspect of their reporting. Mac pointed out that the real issue wasn't so much the problems of the original Tribune/Sentinel story (which the NY Times also had a version of), but rather the users on Facebook sensationalizing the story to imply something about the vaccine. Alba, similarly, points out that the real news is the fact that the reason this article was so popular was that it was shared widely by anti-vax groups.

And... I can see that. But, somewhat ironically, all weekend on Twitter, I kept seeing Facebook haters sharing those NY Times and Washington Post articles in the exact same way that Alba and Mac are complaining about -- by misrepresenting the key newsworthy points, and instead using it to reinforce their prior beliefs (that Facebook was somehow bad).

Very, very, very few people were noting that this is all a lot more complex. It reminds me, yet again, of the research from Yochai Benkler that showed that disinformation really only goes viral on social media after more mainstream media presents a story.

The fact is the ecosystem is a lot more complex, and the ways to deal with it are a lot more nuanced than many people seem to want to discuss or admit. The framing of the Tribune/Sentinel articles was done in a way that it was easily predictable that anti-vaxxers would take the info and run with it. And, frankly, the framing of the NYT and WaPo articles were done similarly in a manner that anti-Facebookers would take the info and run with it. But the reality with both of these stories, and many more, is that they are a lot more complex. The media's role in all of this is important too: how they frame stories, and how those stories might be "weaponized" by those with narratives to tell matters. But we don't see much discussion of that.

Instead, everyone just wants to focus on Facebook, Facebook, Facebook. And, yes, the discussion about Facebook obviously needs to be a big part of the discussion. And Facebook just has a way in which it constantly seems to do the wrong thing at the wrong time (and it's handling of this mess isn't great). But it's not Facebook that wrote that Sun Sentinel article. So, why does Facebook deserve more of the blame for the fact that people took it and misrepresented it than the Sun Sentinel (and the Chicago Tribune who redistributed it)?

And, at a deeper level, if the idea is to point fingers -- who is more able to have helped to prevent that mess? Is it Facebook? For that to be true, Facebook would have to somehow know to distrust an article from the Chicago Tribune that it has no deeper knowledge of. That seems like a really big ask. On the other hand, it seems that the Sun Sentinel -- including the reporters and editors on that story -- as well as the Chicago Tribune, who actively chose to redistribute the story, all would have much more (a) knowledge and (b) ability to recognize the potential risk of how the story is framed, and (c) the ability to fix it.

We're not going to solve the problems associated with a bunch of people believing in nonsense if we ignore the underlying parties responsible for the content itself, and focus just on the intermediaries. That doesn't mean to ignore Facebook, but it's a reminder to view the overall ecosystem.

Filed Under: blame, disinformation, engagement, journalism, reporting, vaccines
Companies: facebook, ny times, washington post

Oversight Unable To Discover Which FBI Agents Leaked Clinton Investigation Info Because Goddamn Everyone Was Leaking Stuff

from the selective-transparency dept

Selective leaking has always been a part of the federal government's day-to-day business. When there are narratives to massage, controlled leaking is tolerated. Leaks that make the government look bad tend to result in prosecutions, but leaks that act as highly unofficial PR or align with the motivations of the agencies they're leaked from are largely ignored.

Every so often, though, oversight is asked to keep an eye on leaking, if only to make it appear that all leaks are considered equal. In the interest of perceived fairness, the FBI's Office of the Inspector General has taken a look at the incidents surrounding the selective release of information about the investigation of Hillary Clinton's use of a personal email server during her stint at the State Department under Barack Obama.

There were questions about political motivations -- ones not helped at all by selective leaks about the investigation. This was on top of supposedly official actions, like then-FBI director James Comey's decision to hold a press conference to announce the outcome of the FBI's investigation. In the agency's determination, what Clinton did was unwise and gave the appearance of impropriety, but was not illegal.

That would have been it. But shortly before the 2016 election, James Comey decided it was time for him to act unwisely and give off an air of impropriety by announcing the FBI would be reopening its investigation of Clinton and her email server, thanks to developments in an unrelated case. Comey's actions were also questionable, but apparently not actually illegal.

The OIG tried to dig into the FBI's use of selective leaking during this time period. And it has arrived at the conclusion that it's almost impossible to accurately point fingers, much less discourage powerful federal agencies from doing whatever the hell they want to, policies and laws notwithstanding. (h/t Brad Heath)

The report [PDF] leads off with a summary of the undoubtedly frustrating investigation. First, it points out how things should be handled…

Among the issues we reviewed in that report were allegations that FBI employees improperly disclosed non-public information regarding the FBI’s investigation into former Secretary of State Hillary Clinton’s use of a private email server. FBI policies strictly limit the employees who are authorized to speak to the media, and require all other employees to coordinate with or obtain approval from the FBI’s Office of Public Affairs (OPA) in connection with such communications.

And follows that up with a resigned statement about how things actually are…

Nonetheless, as described in our 2016 pre-election report, we found that these policies appeared to be widely ignored during the period we reviewed. Specifically, in our analysis of FBI telephone records, FBI email records, FBI text, and Microsoft Lync instant messages, we identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters.

The Federal Bureau of Sunk Ships (feat. Loose Lips). This would be a national embarrassment if it weren't so hilarious. The FBI screws over public records requesters on a regular basis and issues tight-lipped "no comments" or Glomars whenever it's being scrutinized by critics. But apparently everyone on staff is handing out secrets to half the Rolodex whenever they're feeling particularly chatty about politically-tinged investigations.

And if this seems damning, imagine what the OIG would have found if it was actually engaged in an investigation determined to root out criminal activity.

Because this was a non-criminal administrative misconduct review, there was no legal basis to seek a court order to compel Internet service providers to produce to the OIG the content of any personal email communications for these FBI employees.

As much as I'd like to see some federal agents suddenly jobless, I appreciate the restraint of the OIG, which would have been treading into First Amendment waters by seeking content of communications with journalists. All the same, it appears the FBI doesn't really need to keep paying people to staff its Public Relations department. It has all the unofficial help it needs to get the word out.

Those who were caught chatting it up with reporters tended to pass the buck, offering the Inspector General facts not in evidence to justify their casual disregard of FBI policy.

Employees interviewed by the OIG generally claimed that they believed their contacts were either authorized by OPA or a field office Special Agent in Charge (SAC) or Assistant Director in Charge (ADIC) to provide background about an FBI initiative or completed investigation, or were personal in nature. Given the absence, in most instances, of any documentary evidence reflecting the substance of these communications, the OIG was unable to determine whether these communications were consistent with the explanations provided by the FBI employees or instead involved the sharing of non-public information with reporters.

Behold the Federal Office of the Future! It's not just telecommuting and flexible staffing. It's also paper trail-less, which probably helps the environment in some way. God bless America.

In conclusion: holy shit.

Our ability to identify individuals who have improperly disclosed non-public information is often hampered by two significant factors. First, we frequently find that the universe of Department and FBI employees who had access to sensitive information that has been leaked is substantial, often involving dozens, and in some instances, more than 100 people.

Second, although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed. We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. The large number of FBI employees who were in contact with journalists during this time period impacted our ability to identify the sources of leaks. For example, during the periods we reviewed, we identified dozens of FBI employees that had contact with members of the media.

Forget FOIA. Maybe all anyone needs is a barely targeted "request for comment." And it would be ridiculous to believe the FBI is the only agency that behaves this way. The federal government -- as multiple presidents have discovered -- is staffed by the leakiest bunch of leakers who ever leaked. The problem isn't the leaks. It's the selective prosecution of leaks. If the leaks serve the government, they're just part of the public service infrastructure. But if they embarrass the government or expose wrongdoing, they're suddenly criminal acts. And that unequal treatment cannot be addressed by internal investigations. It's a mindset problem -- one the government has no intention of changing, no matter who's occupying the Oval Office.

Filed Under: doj, fbi, hillary clinton, inspector general, james comey, journalism, leaks, oversight, reporting, transparency

Whistleblower Daniel Hale Sentenced To 45 Months In Prison For Exposing The Horrors Of US Drone Strike Programs

from the Espionage-Act-just-means-every-good-deed-gets-punished dept

A Tennessee man was sentenced today to 45 months in prison followed by three years of supervised release for illegally obtaining classified national defense information and disclosing it to a reporter.

So begins the very dry press release from the Department of Justice. What this is, though, is another successful prosecution of a whistleblower. The "Tennessee man" is Daniel Hale, the whistleblower who exposed the breadth and reach of the United States' extrajudicial killing programs.

Hale's leaks followed shortly after Snowden's string of NSA bombshells. The intel gathered by the NSA's many programs formed the backbone for the drone strike programs Hale exposed: the "metadata" our government uses to "kill people."

Hale's house was raided by the FBI back in 2014, shortly after he was interviewed for the drone warfare documentary "National Bird." During his interview, Hale remarked on the risk he was taking discussing the program. Documents leaked to The Intercept by Hale resulted in the multi-part "Drone Papers" feature. The documents exposed the lengthy intel gaps that occurred between target acquisition and drone strikes. It also showed the Defense Department and CIA referred to collateral damage (i.e., the killing of nearby civilians) as "combatants killed in action," with minimal attempt made to tally up the number of people killed simply for existing near the government's targets.

The prosecution didn't begin until 2019, leaving Hale in suspended animation for nearly a half-decade. This prosecution under Trump pushed him past Obama for most whistleblowers prosecuted -- just another lousy addition to a lousy president's legacy.

This is the sort of thing Hale exposed and is now being imprisoned for sharing with journalists and US citizens expected to support these activities with their tax dollars.

Daniel knew cell phones could have been passed from presumed terrorists to other people entirely, and innocent people and those around innocent people would then be killed instead.

[...]

There was further evidence that when military-age males were murdered in a strike, they were classified as militants, an accounting trick that lowers civilian-death counts, and there was an account of a five-month period in Afghanistan in which U.S. forces hit 19 people who were targets of strikes and 136 who were not the targets. There were admissions that the intelligence on which strikes were based was often bad and that strikes made it difficult to get good information because the people who might have provided that information had just been killed by the strike.

Hale pled guilty to "retention and transmission of national defense information." This is a charge under the Espionage Act. His plea followed the judge's declaration that the court would not allow Hale to offer any public interest defense for his actions -- something that's almost always the case in espionage prosecutions. But Hale didn't hand this information to our nation's enemies. He handed it to journalists who published reports based on the documents. This wasn't an attempt to harm our nation. It was an attempt to inform Americans about the atrocities carried out in the name of national security.

For this act of courage, Hale will serve nearly four years in prison. And the war machine will roll on, not even momentarily interrupted by the publication of this supposedly sensitive information.

Filed Under: daniel hale, doj, drone program, drone strikes, espionage act, extrajudicial killing, journalism, leaks, whistleblower

DOJ Makes It Official: No Gathering Of Journalists' Records During Leak Investigation

from the your-move,-Congress dept

For years, the Department of Justice has used its bespoke "balancing process" to decide whether or not to target journalists during investigations of criminal acts or to hunt down the source of leaked documents. This was intended to make the DOJ take into consideration the impact on protected speech and press freedoms when issuing subpoenas targeting journalists. Far too frequently, the DOJ has told itself it's ok to collect journalists' phone and email records in hopes of identifying the actual targets of leak investigations.

With Donald Trump in the White House (a self-avowed enemy of the press) overseeing a short procession of suck-ups holding the title "Attorney General," the DOJ seemed to feel the balancing test was more of a suggestion than a rule and proceeded to attempt to acquire journalists' communications records to sniff out a multitude of leakers.

The first half of this year has been filled with news about journalists caught up in DOJ leak investigations. Freed of gag orders applied during the Trump years, multiple news organizations reported their employees' phone and email records had been subpoenaed by the DOJ.

There's a new President in town, along with a new attorney general. And both made statements claiming the DOJ would stop seeking journalists' records when pursuing leak investigations. Attorney General Merrick Garland also claimed he would support legislation that would block the DOJ from targeting journalists.

We're no closer to seeing this legislation enacted. But the DOJ has finally made it official: it is abandoning the balancing test and wlll no longer seek journalists' records in cases like these. Here's how the Attorney General puts it in the recently-released memorandum [PDF] announcing the change in tactics.

The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of ‘newsgathering activities, as set out below.

This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of anyof the foregoing. It extends to the full range of compulsory process covered by the current regulations, specifically, ‘subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and § 3123, and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.

There are exceptions, of course. Journalists' records can be sought when they're the target of a DOJ criminal investigation. This includes criminal acts not related to their day jobs and also criminal acts committed to obtain government information, like breaking and entering or (one presumes) the number of things considered illegal hacking by the DOJ. The DOJ also has an emergency exception to exploit -- one that says the DOJ can ignore this new guidance if demanding journalists' records is "necessary" to prevent "imminent risk of danger or bodily harm."

But receiving and publishing leaked documents is not considered a criminal act and the DOJ says as much in its memo.

The prohibition does apply when a member of the news media has, in the course of newsgathering, only possessed or published government information, including classified information.

And the memo reaffirms the AG's commitment to backing legislation that would ensure this lasts past his tenure at the DOJ.

To ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations, the Department will support congressional legislation to embody protections in law.

So, this is obviously a first for the DOJ. And, of course, the offer only stands for as long as this regime is in power. Legislation could make it permanent, but there are still enough Trump fans littering the halls of Congress who believe to be a journalist is to be innately untrustworthy, if not an actual criminal, so pushing this past these obstacles might be difficult.

And, again, we're left to speculate who the DOJ believes is covered by this. Is it only members of large press outlets or clearly-defined press entities that are well-established? Or will it cover the constantly-expanding field of citizen/independent journalists who provide the same service, albeit without the masthead? Hopefully, the DOJ will recognize that journalism is an act, not just an occupation, and extend protection to those operating without editors and deadlines.

Filed Under: 1st amendment, 4th amendment, doj, journalism, journalists, leaks, merrick garland, records, surveillance, whistleblowers

French Competition Authority Fines Google Nearly $600 Million For Failing To Negotiate A Nonsensical Deal With Publishers 'In Good Faith'

from the ma-foi dept

France has long been in the vanguard of passing bad copyright laws. For example, it rushed to bring in probably the worst implementation of the EU Copyright Directive's upload filters. It's also keen on forcing Google to pay French press publishers for sending traffic to them when it displays clickable snippets of their news stories for free. Last year, the French Competition Authority said Google had no choice in the matter, and ordered the company to negotiate with French news organizations and come up with a deal that pays them to display even short excerpts. A year on, it seems that the French Competition Authority is not happy with the way that Google has responded:

At the end of an in-depth investigation, the Autorité found that Google had not complied with several injunctions issued in April 2020. First of all, Google's negotiations with press publishers and agencies cannot be regarded as having been conducted in good faith, while Google imposed that the discussions necessarily take place within the framework of a new partnership, called Publisher Curated News, which included a new service called Showcase. In doing so, Google refused, as it has been asked on several occasions, to have a specific discussion on the remuneration due for current uses of content protected by related rights.

And to show how really, really cross it is, the Competition Authority has whacked Google with an immediate 500 million euro fine (nearly $600 million). Somehow the French government body believes the following about that ridiculous amount:

[It] takes into account the exceptional seriousness of the infringements observed and how Google's behaviour has led to further delay the proper implementation of the law on related rights, which aimed to better take into account the value of content from press publishers and agencies included on the platforms. The Autorité will be extremely vigilant on the proper application of its decision, as non-execution can now lead to periodic penalty payment.

That periodic penalty is an equally salty 900,000 euros -- around $1 million -- per day of "delay". These figures are truly extraordinary, not least because a rational observer can see that, if anything, it is the French press that ought to be paying Google for the massive amount of free advertising it receives, not the other way around. It's all further proof that France has been driven mad by its hatred of big US Internet companies, and its equally weird love of maximalist copyright monopolies.

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Filed Under: competition, fines, france, google tax, journalism, link tax, news, news bargaining code, news publishers, search, sending traffic
Companies: google

Denmark's Media Companies Form 'Copyright Collective' To Force Google And Facebook To Pay More For Sending Them Traffic

from the still-a-bad-idea dept

One of the most outrageous ideas dreamt up by traditional media companies is that Internet companies like Google and Facebook should pay for the privilege of sending huge amounts of traffic to their sites. This "snippet tax", also known as the "link tax", was unfortunately enshrined in the EU Copyright Directive in 2019. More recently, Australia has brought in its own link tax, the News Media Bargaining Code, that is even worse than the EU approach.

The move from explicitly targeting snippets to forcing Internet companies to negotiate with the media is significant. It's a recognition that Google and Facebook could avoid paying the link tax if they stopped displaying snippets from media companies. The latter obviously don't want that, since they know it would cause a precipitous drop in the number of people visiting their titles. Instead they want Internet companies to pay up -- just "because". Media companies in Denmark have decided to do this as a group, reported here by the Financial Times (paywall):

Denmark's media industry is pioneering a new bargaining tactic with Google and Facebook over payments for news, with newspapers, broadcasters and internet start-ups joining forces to negotiate with the tech groups as a copyright collective.

Almost 30 Danish media companies will meet on Friday for their first general assembly as a collective bargaining organisation in a move they hope can provide inspiration for other countries in Europe and beyond.

Anders Krab-Johansen, chief executive of newspaper group Berlingske Media and head of the informal network behind the alliance, told the FT that the idea was to stop Google and Facebook negotiating a few deals that set the benchmark for the others. He hopes that the new "copyright collective" will have better luck squeezing more money out of Internet companies.

Changing the format of the negotiations doesn't hide the fact that this is still traditional media companies demanding to be paid for their own failure to innovate and move online quickly enough. It was a bad idea when it was framed as a link tax, and it's a bad idea now it's in the form of collective bargaining.

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Filed Under: ancillary copyright, bargaining code, competition, denmark, journalism, link tax
Companies: facebook, google

Attorney General Says He'll Support Legislation That Bans The DOJ From Targeting Reporters During Leak Investigations

from the sounds-great-but-let's-get-that-on-paper dept

The first half of this year has been periodically interrupted with news of the DOJ's attempts to obtain journalists' phone and email records. The Trump Administration targeted journalists at CNN, the New York Times, and the Washington Post while trying to sniff out the sources of White House leaks.

This wasn't necessarily uncommon behavior for the DOJ. Prior to Trump's arrival in office (along with his open disdain for journalists), the Obama Administration set records for leak investigations and whistleblower prosecutions. Obama's DOJ targeted journalists hundreds of times while Eric Holder was Attorney General.

Following this run of negative press, President Joe Biden stepped up to swear the DOJ would never target journalists again. A few days later, the DOJ decided it should align itself with its boss and also said it would end the practice of seeking journalists' records during leak investigations. An investigation was opened by the DOJ's Inspector General to see how often this was done and whether or not it violated rights/DOJ policies.

This is all well and good but all it takes is a regime change -- something that can happen as often as every four years -- to roll these pledges back and let the DOJ get back to using journalists' communications records to track down their sources. To make it permanent, you need codification.

So, Congress had better get on it, because this promise by the new Attorney General expires when he leaves office.

Attorney General Merrick Garland has endorsed the idea of legislation to create an enduring ban on federal prosecutors subpoenaing reporters or their phone or email records in federal investigations, but he stopped short of announcing an official endorsement on behalf of the Biden administration.

[...]

"You are right in suggesting that the only way to make it permanently durable is through legislation, and I personally will support working with Congress to develop legislation that would make protections for obtaining the press’ records part of the legislation," the attorney general said in response to a journalist's question on the topic.

A lot of journalist shield legislation has come and gone without becoming enshrined into law. It will be no less difficult to get this on the president's desk this time around, as there seems to be some leftover animosity towards the press residing in a number of Congressional reps and Senators.

The DOJ is revamping its internal policies to better fit the public statements made by Merrick Garland. But those too are subject to rewriting if future DOJ officials would rather punish leakers than respect rights. Still, this is more than we've seen from any other DOJ boss in terms of protecting journalists from the DOJ. Obama's Attorney General, Eric Holder, did back legislation creating more protections for journalists, but that failed bill did not explicitly forbid the DOJ from seeking journalists' records.

This is heartening news, even if it's a bit dampened by the reality of passing legislation in DC. Without bipartisan support, it will likely go nowhere. It will be up to the DOJ to enforce its own ban, if that's the direction it decides to go. Trusting the DOJ to not break its own rules has rarely worked in the past. If the DOJ decides later it's more efficient to go after journalists when hunting leakers, it will. And it will find a way to justify its actions, with the easiest route being to quietly scrap internal guidelines preventing it from doing what it wants.

Filed Under: doj, journalism, leaks, merrick garland, surveillance