Thomas Drake Gets Probation, Community Service; Judge Slams Feds For Prosecution

from the threat-to-our-country? dept

The fed's ridiculously vindictive legal attack on Thomas Drake for whistleblowing is now basically over. Late Friday, a judge sentenced Drake to 1-year probation and 240 hours of community service. As you may recall, the fed's case against Drake completely fell apart, just as the trial was to get underway, in part due to a lot of press coverage of just how ridiculous the lawsuit was. It was never, as the government implied, about leaking classified information. It was always a vindictive attack on Drake for pointing out massive amounts of waste at the NSA.

In the plea deal that Drake agreed to, prosecutors agreed not to ask for jail time, even though he could have received up to a year in jail (significantly lower than the 3 or so decades he was facing under the original charges). The prosecutors did ask for a $50,000 fine though. And they didn't get it. In fact, the judge scolded prosecutors for the whole case:

Judge Bennett said the government's decision to back away from its case on the eve of trial was "extraordinary," and added that he was particularly troubled by the 2 and ½ year time lapse from when federal agents first searched Mr. Drake's home to when he was charged. "It was not proper. It doesn't pass the smell test," the judge said.

Of course, it didn't pass the smell test because the whole thing smelled rotten. Thankfully, it ended on a somewhat positive note, though it's still ridiculous that Drake received any punishment at all.

Filed Under: censorship, obama, thomas drake, whistleblowing

NSA Whistleblower Thomas Drake Agrees To Plea Bargain Deal

from the totally-understandable dept

In our earlier post about the case against Thomas Drake, I sort of suspected he would eventually take the plea bargain deal, which is why I warned that people shouldn't be upset if he did. And he's now done exactly that, but the details seem reasonable. He rejected two separate plea bargain offers, even ones that likely would have meant no jailtime, if it meant agreeing to things he didn't think were accurate. In the end, the agreement he took involves pleading guilty to unauthorized use of a computer, which could carry a one-year sentence, but prosecutors have agreed that they won't oppose it if he seeks a non-jail sentence.

As I said in the earlier post, as much as it would have been nice to see him fight all the way to the end and totally clear his name, this seems perfectly reasonable. In this way, the key parts of the case -- involving a really awful attempt by the federal government to abuse the Espionage Act to punish a clear whistleblower -- gets totally dumped. And, when you're faced with the potential of 35-years in prison, at some point reality sets in and it's almost crazy not to take a plea bargain that gets you no jail time. Just the fact that he turned down the two earlier plea deals is pretty amazing. In the end, the only way to look at this is that Drake stood up to the government and won. The feds won't get the precedent they wanted for using the Espionage Act against a whistleblower, and plenty of people learned about the ridiculous vindictive prosecution by the federal government.

Filed Under: censorship, obama, thomas drake, whistleblowing

Feds Ridiculous Prosecution Of Whistleblower Thomas Drake Falling Apart

from the stay-strong dept

We've written a few times about the federal government's ridiculous and vindictive attempt to convict Thomas Drake of violating the Espionage Act and put him in jail for 35-years, all because he blew the whistle on some massively wasteful NSA spending.

If you haven't followed the case, Drake was part of a team that helped to develop a system that the NSA could use for its warantless wiretapping program. To prevent the system from being used to wiretap Americans (something the NSA is not supposed to do), the team also built in some protections to block out such taps on Americans. However, after 9/11, the NSA upper management decided to spend billions on a brand new system that would more broadly wiretap pretty much everyone without a warrant and without any such protections. That system was something of a failure and Drake and some others were upset that so much was wasted on such a bad system, when the NSA had a system that worked within the law. As part of being upset, he provided some info to a reporter at the Baltimore Sun concerning the financial failure of the system (but not anything classified about the warrantless wiretapping program itself).

As investigators were seeking to find out a source for a different report (to the NY Times), which did reveal the warrantless wiretapping, they investigated Drake and claimed to have found four "classified" documents that he had mishandled. Even that's misleading. Drake (and a few others) had (properly) filed a complaint with the Inspector General about NSA waste, and were told to keep copies of the report themselves, which included those files. One of the "classified" documents was even stamped "unclassified", but the government argues Drake should have known it was really classified. Other documents were declassified anyway months later. Drake's case is a clear example of a vindictive administration trying to hit back at whistleblowers by abusing the Espionage Act.

And now that case may be falling apart.

Earlier in the week, it was reported that, to avoid revealing secrets at the trial scheduled to begin next week, the government would use a code based on boxes and arrows to try to obfuscate any classified info, leading to complaints from Drake's team that the government seemed to want to hide important information that would help clear Drake. However, the government instead decided not to use that evidence at all, and people are beginning to realize that the entire case is crumbling. In fact, the feds are apparently now desperate to avoid actually going to trial and are offering up all sorts of plea bargains, including the latest: rather than face 10 felonies, Drake could agree to a misdemeanor and get no time in jail.

For someone facing potentially 35 years in jail, I can see how tempting that can be. But Drake has declared that he won't "plea bargain with the truth." It would be nice if he continues to stick up for what he believes is right, but I don't think anyone can rightly complain if he ends up accepting such a plea bargain. Unless you've been on the wrong end of a criminal lawsuit that could put you in jail for 35-years, it's difficult to complain about a guy taking a plea bargain that keeps him out of jail. Still, that doesn't mean we can't hope that he continues to fight this clear abuse of federal power against whistleblowers.

Filed Under: censorship, obama, thomas drake, whistleblowing

White House Punishes Pool Reporter For Posting Video Of Bradley Manning Supporters Protesting Obama

from the sad dept

This is just sad. For a president who claimed that he was going to bring a new era of transparency and openness to the White House, every day it seems like President Obama is actually closing off more avenues of communication and being less transparent than any president in history. The latest is an attempt to punish a San Francisco Chronicle reporter for daring to use a mobile phone to record some video of Bradley Manning supporters singing a song in protest when the President was visiting San Francisco. Apparently, the White House didn't like that a "pen and pad" reporter had recorded video and have said that this reporter and paper will be excluded from future events.

They won't give a clear explanation of why, but the implication is that because she went beyond "pen and pad" with the video, she violated some sort of guideline, though the SF Chronicle says no guidelines were violated:

The White House Press Correspondents' Association pool reporting guidelines warn about "no hoarding" of information and also say, "pool reports must be filed before any online story or blog." While uploading her video probably was the best way to file her report, Carla may have technically busted the letter of that law.

But the guidelines also say, "Print poolers can snap pictures or take video. They are not obliged to share these pictures...but can make them available if they so choose."

No matter what, the clear implication is that the administration doesn't like it when reporters show stuff that embarrasses them. For a "transparent" president, and one who claims to have embraced various aspects of social media (as the report notes, this protest happened hours after Obama spent some time at Facebook...), it seems incredibly hypocritical to punish a reporter for embracing new technology and new tools to report on a story.

Filed Under: journalism, obama, sf chronicle, transparency

Obama Secretly Accepts Transparency Award...

from the that's-not-transparency dept

Chuck Norris' Enemy (deceased) writes "A group awarded Obama for bringing greater transparency to government during the recent Sunshine Week. One hour before the meeting, which was to be open to the press, it was inexplicably postponed. The meeting did take place Monday but was closed to the press while location and schedule were undisclosed. A commenter on one of the sites joked that this must be an Onion article."

Filed Under: obama, transparency

For All The Promises Of Transparency, Obama Administration Responding To Fewer FOIA Requests

from the but-of-course dept

One of the first moves that President Obama made upon taking office was to tell federal agencies to default to "allow" when it came to Freedom of Information Act (FOIA) requests, and only deny in specific situations. It looks like that's not really happening. A new report points out that while the number of FOIA requests shot up last year, the government actually responded to many fewer of those requests. More than one-third of requests were refused. That's not the transparency we expected.

Filed Under: freedom of information, obama, transparency

David Plouffe Gives Preliminary Response Concerning Obstacles To Innovation

from the did-they-really-listen dept

Tony was the first of a bunch of you to send over the news that President Obama's top advisor, David Plouffe, has put up a blog post providing a preliminary overview of what he "heard" via the Ask the Advisor question, which we wrote about last week, concerning "obstacles to innovation." The only indication that responses like mine were read was a brief mention about how some people complained about how the government, and particularly patent policy, got in the way of innovation:

Many respondents felt that too much government regulation stifled businesses and innovators and that the patent process and intellectual property laws are broken.

Unfortunately, rather than listening to why today's patent system is a real and significant problem, it appears that Plouffe is using this to score political points for his boss:

In his State of the Union Address, the President called for a government-wide review of regulations to find and fix those regulations that place unnecessary burdens on businesses. Indeed, in his Budget, the President put forward a set of common sense reforms to our patent system that will make it easier for innovators to move ideas to market and foster growth.

The problem is that his suggestions for patent reform do not fix the system, and in some cases make it much worse. In fact, I pointed to numerous studies and research in my response that explained this.

Plouffe claims he'll have much more on this topic of encouraging innovation, so we'll wait and hope that perhaps the administration will really listen this time, and not just paper over the real problems of the patent system with reform policies that won't help (and might actually make the system worse).

Filed Under: david plouffe, innovation, obama, obstacles

Columbia Journalism School Staff Warns Obama That Prosecuting Wikileaks Will 'Set A Dangerous Precedent'

from the heed-the-warning dept

While it's been unfortunate watching the traditional press attack Wikileaks for doing the job it refused to do itself, it's nice to see the staff of Columbia's journalism school (still considered one of the top journalism schools) come out and warn the Obama administration that prosecuting Wikileaks will set a dangerous precedent for freedom of the press, even for those who disagree with Wikileaks' methods:

While we hold varying opinions of Wikileaks' methods and decisions, we all believe that in publishing diplomatic cables Wikileaks is engaging in journalistic activity protected by the First Amendment. Any prosecution of Wikileaks' staff for receiving, possessing or publishing classified materials will set a dangerous precedent for reporters in any publication or medium, potentially chilling investigative journalism and other First Amendment-protected activity.

As a historical matter, government overreaction to publication of leaked material in the press has always been more damaging to American democracy than the leaks themselves.

The U.S. and the First Amendment continue to set a world standard for freedom of the press, encouraging journalists in many nations to take significant risks on behalf of transparency. Prosecution in the Wikileaks case would greatly damage American standing in free-press debates worldwide and would dishearten those journalists looking to this nation for inspiration.

Seems to more or less summarize the position we've taken over the last few weeks as well...

Filed Under: free speech, journalism, obama, professors, wikileaks
Companies: wikileaks

President Obama, After Traveling With Naked Scanner CEO, Defends Naked Scans

from the well,-look-at-that... dept

As the whole mess with the TSA scanners has received a lot more attention in the last week or so, a few folks are noticing that ex-Homeland Security boss Michael Chertoff, who's been quite busy defending the naked scanners, happens to be making a ton of money from one of the main ones, Rapiscan, made by OSI, a client of Chertoff's consulting firm. Of course, similar concerns were brought up a year ago when Chertoff was busy promoting the scanners, but it appears that many in the mainstream press continue to highlight his old Homeland Security title, while downplaying his current role making money from seeing those scanners sold.

However, perhaps even more interesting is the news that President Obama was finally asked to address the whole thing this weekend, and (not surprisingly) defended the scans and the pat downs as "the only [procedures] right now that [the TSA] considers to be effective," to prevent terrorism (while also admitting that he doesn't have to go through security to get on airplanes, so he hasn't experienced the scans.

No surprise there. Of course, what he didn't mention is that he just got done traveling with the CEO of OSI, the parent company of Rapiscan, the makers of the main naked scanner that is being purchased and put into all these airports. Apparently, OSI CEO, Deepak Chopra (no, not the new agey guy), "was selected to accompany US President, Barack Obama, to Mumbai and attended the US India Business Entrepreneurship meeting..."

Now, of course, all of this may be perfectly legit and reasonable. There may be plenty of reasons why all of these things happened. Chertoff and Obama may really believe these scanners are the best way to protect us. But, as Larry Lessig has been fond of pointing out lately with his anti-corruption project, it's these kinds of "connections" that make the American public lose trust in their government, since it can certainly be read in a rather corrupt manner.

Filed Under: obama, scans, tsa
Companies: osi, rapiscan

Obama Reiterates Support For ACTA, As More People Point Out How Far ACTA Is From The Purpose Of Copyright

from the bad-thinking dept

A few months back, President Obama publicly stood behind ACTA despite tons of concerns about it from the public. It's disappointing that as more and more concerns and problems with ACTA have been highlighted, Obama has not reconsidered. He still seems to be taking the position that "more copyright must be good, and ACTA therefore is good." That's a naive position. The group Open ACTA points us to a statement made by Obama in Mexico, concerning better trade relations with Mexico, where he again insists that ACTA is a key part of better trade relations:

Innovation and investment in technology and human capital are keys to sustained economic growth and competitiveness in both Mexico and the United States. The protection of intellectual property rights is essential to promote such innovation and investment. With this in mind, the Presidents charged their administrations to work together to formalize and expand the efforts of the existing bilateral Intellectual Property Rights Working Group. These efforts will include industry training (including of small and medium size enterprises); work between Mexican Institute of Industrial Property (IMPI) and the United States Patent and Trademark Office (PTO) to streamline patent reviews; and collaboration, training and increased intelligence sharing among law enforcement agencies to enforce intellectual property rights more effectively. The Presidents also reaffirmed their commitment to the negotiation of the Anti-Counterfeiting Trade Agreement and charged their administrations to conclude these negotiations soon.

But, this blind assertion that stricter copyright enforcement without key exceptions and consumer protections that actually contribute more value to the economy than copyright restrictions, isn't just wrong, it goes against the very purpose of copyright law.

Hephaestus points us to a submission to the Australian government, by the Australian Digital Alliance, that does a great job highlighting the negative impact of ACTA (pdf) and how it goes against basic copyright law:

"The text of ACTA does not reflect one of the most important objectives of copyright -- to ensure access to information for the benefit of society. Protecting creators to encourage continued innovation is only one half of the copyright equation, ACTA fails to recognise the dual purpose of copyright."

The whole submission is worth reading, as it highlights all sorts of serious issues with ACTA and the impact it would have:

ACTA might have a negative impact on individuals as Internet citizens and as consumers of digital technologies because some of its requirements go beyond Australian law. ACTA will facilitate excessive damages payouts by mandating the controversial 'lost sale analysis' for the assessment of damages and encouraging punitive style statutory damages that set arbitrary amounts for infringement. ACTA will also broaden the scope of commercial scale infringement to criminalise purely private acts that occur in the homes of some Australians....

ACTA might have a negative impact on intermediaries that will damage Australia's digital economy by diminishing Internet innovation, the free flow of information and legitimate commerce. ACTA provides for the unqualified award of injunctions against intermediaries, which creates new rights with significant potential for abuse and cost implications for ISPs. ACTA defines where third party liability will be imposed, which is a highly controversial issue that requires the flexibility of being dealt with at a domestic level. ACTA will burden intermediaries with more onerous requirements for safe harbour protection that may encourage three strikes.

What's most frustrating about all of this is that it really does appear that many ACTA supporters are simply going by the boilerplate myth that "stronger copyright protection" is "good for society," without ever once bothering to understand the details and why such a statement isn't just wrong, but dangerous.

Filed Under: acta, copyright, obama