Google's Arbitrary Morality Police Threaten Us Yet Again; Media Sites Probably Shouldn't Use Google Ads

from the looking-for-alternatives dept

Two years ago, we wrote about a ridiculous situation in which the morality police who work for Google's AdSense team threatened to kill our account because they saw that their ads were being displayed on this page, which has a story (from 2012) about a publicity rights claim involving a music video using footage of a porn star without her permission. The story was quite clearly about the intellectual property issues at play, but the AdSense team insisted that since the still image displayed from the embedded video showed a (clothed) woman pole dancing, it violated their policies on "adult or mature content." We protested and AdSense rejected our protest, insisting that the still image of the pole dancing violated their policies. Never mind the fact that the same exact video was hosted on Google-owned YouTube where it had Google's ads enabled...

For what it's worth, this happened just months after we had started using Google AdSense, after representatives from that team put together a big effort to get us switch from the other ad provider we'd been using at the time.

We had hoped that after that incident the AdSense team would have, perhaps, rethought some of its practices. No such luck. Last year we wrote about another case, not involving us, but where Google started threatening the site Antiwar.com for posting the infamous photos of US soldiers mistreating prisoners at the Abu Ghraib prison in Iraq. After that story started going viral, Google's AdSense team backed down -- but apparently they've done little to fix their processes.

In the last two weeks we've received two notices of violations from AdSense, each of which seems more ridiculous than the other in some way, and which has us reconsidering our use of AdSense as a media property, as Google fails at distinguishing between reporting on bad things and celebrating those same things. In both cases, the "violation" involved a post that was many years old, so it's unclear why Google suddenly discovered them. In both cases, the posts were basic reporting on something that had happened, and no rational and reasonable person would conclude they violated any policy that AdSense has. And, yet, in both cases, Google claimed they violated its policies, and threatened that if we were unable to sort through the 64,000 other posts on Techdirt to weed out the ones that somehow violate Googles bizarre and arbitrary morality police policies, we risk losing our account.

The first was about a post from 2010, involving a lawsuit concerning assisted suicide. As we noted in our short post on it, there was a legal question about whether or not its illegal to tell people how to commit suicide online. Because while there are laws against assisted suicide, the guy was basically arrested for merely telling people over the internet they should commit suicide, and that seems like protected First Amendment speech. Thus it was an interesting legal question worthy of debate (our post received 60 comments, suggesting many folks agreed). So what could possibly be wrong with that? Well, according to the AdSense team:

Google does not allow the monetization of content that may be sensitive, tragic, or hurtful. While we believe strongly in the freedom of expression and offer broad access to content across the Web without censoring search results, we reserve the right to exercise discretion when reviewing sites and determining whether or not we are able to provide a positive user experience delivering contextually targeted ads to a site with this type of content.

In short, Google AdSense requires some sort of special trigger warning setup, whereby we need to turn it off on any article that someone might consider "sensitive, tragic or hurtful"? Does that mean no AdSense ads are allowed on stories about the shooting in Orlando this weekend? Is that really the official policy of Google's morality police? Sure, I could see that Google might not want to have its ads on a site associated with telling people how to commit suicide -- but obviously that's not what our story was about at all. The fact that the morality police working for AdSense can't seem to tell a journalistic blog post about a legal dispute from a site advocating for assisted suicide (which really doesn't seem that tragic or hurtful in the first place) is fairly ridiculous.

The second complaint, received over the weekend, is about a post from 2012 concerning the band Death Grips' decision to just give away its album after its label, Epic, had tried to shelve the album. It's an interesting story highlighting an all too standard dispute between musicians and a record label, with a somewhat unique solution by the band. So, what could Google possibly be complaining about here? Are you ready for this?

Google ads may not be placed on pages with adult or mature content. This includes, but is not limited to, pages that contain:

• erotic stories or descriptions of sexual acts
• sexual jokes
• erotic or sexual forums
• sexual or profane terms in the URL
• crude language or excessive amounts of profanity

Going through the article, there doesn't seem to be anything like that in our post. What it almost certainly refers to, however, is that we discussed one of the reasons why Epic may have decided to shelve the album release, which is that the band wanted an album cover that was a photograph of an erect penis. We did not post this image, but we did link to it -- along with a clear "NSFW" warning. We didn't even describe what was in the photo, other than implying obliquely that it may have something to do with male genitals. Other than that, the post contains no profanity or sexual language (there are some curses in the comments, but I don't see how that could count).

Once again, any normal, living, thinking human being should be able to look at such a post and recognize that it's a blog post/news story about a newsworthy event, rather than some sort of sexual forum with crude language. But, alas, no such luck -- we're told that we violate AdSense's apparently random policies, and we're at risk of losing our account.

Oddly, on the first notification, we were told that Google automatically turned off ads on that page on their own (though telling us we should explore the rest of our pages to see if there were similar "violations.") On the latter one, Google was not as proactive, instead demanding that we figure out a way to disable ads on that specific page ourselves.

Now, Google is a private company that obviously has the right to choose who it wants to do business with and how it does business, but this seems particularly ridiculous. This does raise questions for us as a media property and whether AdSense is compatible with news reporting. We shouldn't have to worry if the Google morality police might randomly show up at any time to insist we're violating its rules by actually reporting on newsworthy stories.

Filed Under: ads, adsense, google ads, journalism, morality, morality police
Companies: google, techdirt

Local Fox Affiliate's Reaction To Brutal Police Beating Is A Dereliction Of Its Duty

from the the-fourth-estate dept

There tends to be a great deal of talk these days about how the media influences public discourse. Most of these conversations tend towards the inane, with the dichotomy of our political affiliations directly deciding how we see the media's influence. One political side will complain that the media leans one way, while the other complains likewise. Everyone is working from a different set of "facts," causing the whole conversation to devolve into a sporting event, with each side rooting for its own team and proclaiming an underdog type of branding for their team against the horde of media others.

The reality is much more nefarious and stark. The larger media, once at least mildly interested in paying lip-service to being the "fourth estate" and holding government and public institutions accountable to the general public is today anything but. Instead, news media today is far more interested in sensationalism without substance and a plodding prostration before government over being an information source for the public. You can see this best in the media's mindframe when reporting on police activity. A wonderfully brutal recent example of this is one local Fox outlet's reporting on a police chase that should have ended when the suspect willingly stopped his vehicle and surrendered by lying on the ground. Indeed, that appears to be how the cameraman recording the event would have preferred the reporting on the story to have ended.

What you see is the suspect surrendering, exiting the vehicle, lying upon the ground as instructed, and then being pummeled for a brief moment before the camera quickly zooms out and renders the action indiscernible. Why the camera operator did so remains unanswered, but we know from other footage captured by an NBC affliate that the police spent the next half-a-minute or so beating the shit out of a man who was lying surrendered on the pavement. Were we to need to rely on the Fox footage to determine what had happened, we wouldn't have this full picture of the beating in our minds. Instead, we'd have a moment or two of the violence, which could quite possibly be excused and waived off by what would be a typical dismissal by the authorities.

Indeed, in that same local Fox affiliate's own reporting on the controversey, the public is informed:

"[Mass. State Police] will also review the apprehension of the suspect, to determine whether the level of force deployed during the arrest was appropriate," FOX25 has been told.

And quoting the District Attorney's office:

"I think anyone who looks at the video is disturbed by it, but we don't jump to conclusions," Nashua Police said. "We need to find out what happened."

The Fox affiliate's linked story, castrated by its own camera operator's perhaps subconcious choice to protect the authorities from damning footage, offers no further comment on the footage, the controversy, or the beating the man took at the hands of police. The news anchors mention that the public is calling the station about the beating the man took and say they are asking police for an explanation.

But that camera pulling back, small detail as it may seem, certainly feels emblematic of a very real problem. For a news organization covering a story about a police chase, there must be no greater need for camera footage than the culmination of that chase. It's the climax of the story. Yet, the moment the controversial actions by the police begin, the camera pans far back. I wouldn't mean to suggest that this reaction is one purposefully trying to keep the public uninformed, but it certainly is the reaction of someone not trained specifically to do the job of holding government and the authorities accountable.

That's the shift that's happened in media these past few decades. That's the bias about which you should be concerned. If the mass media no longer serves the public, it serves no purpose at all.

Filed Under: journalism, police brutality

UK Sports Star Threatens American Newspaper For Posting Public Information About His New Home

from the how-do-you-say-streisand-in-british? dept

People don't always like it, but home ownership records are public information in the US, and they often get reported on. There are all sorts of things that people do to deal with this, including using shell companies to buy homes or, like most people, just sucking it up and recognizing that such information is public. But, sometimes that message is hard to get across, and then you have a lawyer come and do something stupid. As you may know (or as you absolutely know if you even remotely follow football -- the non-American kind), in the world of UK Premier League football, there was just quite an insane and unexpected victory by Leicester City (beating 5000 to 1 odds).

At about the very same time, reporters at the NY-based Observer noted that one of the team's players, Christian Fuchs, not only won the title, but also had purchased a nice new townhome in Manhattan. Again, this is a public record, and it is not uncommon for the news to report home purchases of celebrities. But, for some reason, Fuchs flipped out about this and had a lawyer threaten the Observer -- or, rather, directly threaten the reporter who wrote the story:

The letter, written by Michael Yates, an associate of big UK media law firm Lee & Thompson, was sent not to me or to Ms. Halberg’s editor but to Ms. Halberg herself, presumably to heighten its intimidation value. Hilariously, it cites the Fuchs’ rights under “Article 8 rights under the European Convention on Human Rights.” And it even plays the “you’re harming the precious Fuchs children” card.

“The Information and Photographs constitute private information belonging to our clients, as well as belonging to their two young children, which you have published without their consent.” The letter helpfully advises the Observer, under a section headed “URGENT NEXT STEPS” (Mr. Yates suppressed the British penchant for understatement by deploying all caps, bold, and underlining): “immediately remove your article containing the Information and the Photographs and confirm that you will not publish the same again in the future.”

The letter continues, “My clients have not even told their own children about the purchase of this property, which is another indication of how private it is. In any event, English case law makes it expressly clear that children are afforded a higher degree of protection under the law of privacy than adults. Publishing details and photographs of exactly where our clients’ children reside is not only a breach of that privacy, but it is plainly a security risk causing our clients very grave concern.”

Article 8, in case you're wondering, is sort of a similar thing to the 4th Amendment in the US. It's designed to stop unwarranted searches of homes, though its rather odd and broad wording of protecting "private and family life" has led some -- apparently including Fuchs' lawyer Michael Yates -- to believe that it also applies to "stuff my family wants to keep private."

But, the idea it applies to public records about home purchases in the United States is ludicrous. And, thankfully, the Observer gets that:

We’re not removing shit.

They also sent back the following letter to Yates, noting that it was approved by their lawyer, who happens to be British:

Dear Mr. Yates:

It is no longer well known that British control of New York City didn’t end until the very last days of the Revolutionary War in 1783. Since then, however, we Americans no longer take orders from you, or from your entitled, swaggering clients. We congratulate Mr. Fuchs on his club’s amazing success this year. But we won’t be adding “intimidating a website into unpublishing protected speech” to his list of victories.

We shall also be publishing a follow-up story noting that you’ve threatened our reporter with your jerkoff language: “We strongly urge you not to underestimate our clients resolve in pursuing this matter.” According to our lawyer, no American court will order any form of damages to be awarded by this surreptitious attempt at colonialism by lawfare. I shall be in London in a couple weeks, in case you need to alert the authorities.

Meanwhile, you allude to the matter being so private that even the footballer’s children have not been told yet. While we congratulate the Fuchs children on being Observer readers, we cannot help but wonder if the real irritant here is that Mr. Fuchs’ employer and teammates found out about his purchase from reading the Observer.

Sincerely, Ken Kurson

He, of course, doesn't get into the details of why the threat is ridiculous, but the key point, as we've discussed in the past, is that here in the US we have the SPEECH Act, which is tremendously useful in stopping those outside the US from attempting to censor protected speech within the US. That law was designed exactly for situations like this, where someone outside the US is pointing to foreign laws to try to silence what is clearly protected speech by an American publication. Even if Fuchs could win some sort of judgment in the UK, or elsewhere in Europe, it would be totally unenforceable inside the US.

And, of course, the very act of threatening the reporter and trying to remove the content has, as per usual, done the exact opposite and drawn much more attention to it. You would think, by now, lawyers would recognize how this plays out. It's not like it's a new concept or anything.

Filed Under: christian fuchs, free speech, journalism, leicester city, privacy, public records, reporting, streisand effect
Companies: the observer

Facebook Has Lost The War It Declared On Fake News

from the fakey-fakey dept

Fake news stories are a scourge. Something different from parody news folks such as The Onion, there are outfits out there that produce false news stories simply to get clickthroughs and generate advertising revenue. And it isn't just a couple of your Facebook friends and that weird uncle of yours that gets fooled by these things, even incredibly handsome and massively-intelligent writers such as myself are capable of getting completely misled into believing that a bullshit news story is real.

Facebook is generally seen as a key multiplier in this false force of non-news, which is probably what led the social media giant to declare war on fake news sites a year or so back. So how'd that go? Well, the results as analyzed over at Buzzfeed seems to suggest that Facebook has either lost this war it declared or is losing it badly enough that it might as well give it up.

To gauge Facebook’s progress in its fight, BuzzFeed News examined data across thousands of posts published to the fake news sites’ Facebook pages, and found decidedly mixed results. While average engagements (likes + shares + comments) per post fell from 972.7 in January 2015 to 434.78 in December 2015, they jumped to 827.8 in January 2016 and a whopping 1,304.7 in February.

Some of the posts on the fake news sites’ pages went extremely viral many months after Facebook announced its crackdown. In August, for instance, an Empire News story reporting that Boston Marathon bombing suspect Dzhokhar Tsarnaev sustained serious injuries in prison received more than 240,000 likes, 43,000 shares, and 28,000 comments on its Facebook page. The incident was pure fiction, but still spread like wildfire on the platform. An even less believable September post about a fatal gang war sparked by the “Blood” moon was shared over 22,000 times from the Facebook page of Huzlers, another fake news site.

So, how did this war go so wrong for Facebook? Well, to start, it relied heavily on user-submitted notifications that a link or site was a fake news site. Sounds great, as aggregating feedback has worked quite well in other arenas. For this, however, it was doomed from the start. The purpose of fake news sites is, after all, to fool people, and fooled people are obviously not reporting the links as fake. Even when a reader manages to determine eventually that a link was a fake news post at a later time, perhaps after sharing it and having comments proving it false, how many of those people then take steps to report the link? Not enough, clearly, as the fake news scourge marches on.

Another layer of the problem appears to be the faith and trust the general public puts into some famous people they are following, who have also been fooled with startling regularity.

Take D.L. Hughley, for example. The comedian, whose page is liked by more than 1.7 million people, showed up twice in the Huzlers logs. One fictitious Huzlers story he posted, about Magic Johnson donating blood, garnered more than 10,000 shares from his page. Hughley, who did not respond to BuzzFeed News’ request for comment, also shared four National Report links in 2015.

Radio stations also frequently post fake news. The Florida-based 93XFM was one of a number of radio stations BuzzFeed News discovered sharing Huzlers posts in 2015. Asked about one April post linking to a Huzlers story about a woman smoking PCP and chewing off her boyfriend’s penis, a 93XFM DJ named Sadie explained that fact-checking Facebook posts isn’t exactly a high priority.

In other words, people and organizations that the public assumes to be credible sources of information are sharing these fake news articles, and the public turns off their collective brains and assumes them to be true. After all, if we can't trust D.L. Hughley then, really, who can we trust? But when even major outlets such as the New York Times have included links in its posts to The National Report, do we really expect people to cast a wary eye towards such an established news peddler?

Well, we should, because the ultimate problem here are the equal parts of a polarized American public coupled with a terrifying level of credulity. Many of these fake news pieces contain headlines for stories that some people want to believe, typically for ideological reasons. This is why a family party recently saw me trying to explain to my grandmother that, no, Michelle Obama probably does not in fact have a penis. That's a true story, friends, and it stemmed from a fake news article. The willingness to believe such a thing is extreme, certainly, but stories of the Boston Bomber getting beaten in prison fuel the same desire for such a story to be true.

The war is lost. Fake news goes on unabated. Long live Michelle Obama's penis.

Filed Under: algorithm, fake news, journalism, parody, reality
Companies: facebook

Canadian Court Says Vice Magazine Must Hand Over Its Communications With A Suspected Terrorist

from the Canadian-journalists-expect-an-Arctic-Front-to-begin-moving-in... dept

A Canadian court -- granting a request made by the Royal Canadian Mounted Police (RCMP) -- is in the process of dismantling protections for Canadian journalists. The case involves a Skype interview by Vice Magazine with an alleged terrorist currently located in Syria. The interview, in which the self-avowed terrorist (Farad Mohamed Shirdon) claimed an attack in New York City was imminent, appeared back in October 2015 and led directly to his being charged in absentia with several terrorism-related offenses.

Since that point, Vice has been battling to protect itself from a production order by the RCMP, seeking communications between Vice reporter Ben Makuch and Shidron. It has argued that forcing a journalistic entity to turn over communications with a source would set a dangerous precedent that would adversely affect press freedom in that country.

The RCMP says the communications are evidence -- or presumably are, since they haven't been turned over yet. The court seems to agree.

[I]n a decision released this week, the court rejected VICE's attempt to quash the order, ruling that the police's ability to gather evidence trumps the rights of VICE and Makuch to protect their work product in this case. Specifically, the screen captures of the chats are "important evidence in relation to very serious allegations" and "The screen captures are a copy of the actual electronic messages that Shirdon placed on Mr. Makuch's computer screen. They are highly reliable evidence that do not require a second hand interpretation," Justice Ian MacDonell wrote in his decision.

Vice News is looking at appealing this order. As it points out, its reporting already led to the identifying and charging of Shidron, something that most likely would not have happened without its publication. It also claims nothing it has in its possession will provide any more insight on Shidron's current location or future plans.

As Vice's attorney points out, this sort of demand is a threat to journalism.

VICE's lawyer, Iain MacKinnon, said similar production orders could become more common in Canada if police know they can easily obtain notes and recordings from journalists. "It could have a very real chilling effect on the willingness of people and witnesses speaking to journalists," said MacKinnon. "If people realize that what they say to a journalist could easily be handed over to police and used as part of a criminal investigation, that may scare somebody off in speaking to a journalist."

A large part of what makes journalism journalism is investigatory work and speaking to sources who wouldn't feel comfortable speaking to someone if they couldn't be assured anonymity or other protections. Journalists are not an extension of law enforcement or any other government body (or at least shouldn't be), but that's what an order like this does: makes Vice News a convenient source for law enforcement to obtain communications and documents from. I'm sure Vice has no desire to "harbor" a terrorist, but it also has no desire to see terrorism fears being leveraged to create a dangerous precedent.

Filed Under: ben makuch, canada, journalism, journalist shield, protected sources, rcmp, sources, terorrism
Companies: vice

After Leading The Attack On Investigative Journalism, President Obama Whines About A Lack Of Investigative Journalism

from the really-now? dept

On Monday, President Obama gave a speech about journalism in Washington DC, in which he bemoaned the state of investigative journalism today, suggesting that the lack of good investigative journalism is partly to blame for the mess that is this year's Presidential election season:

A job well done is about more than just handing someone a microphone. It is to probe and to question, and to dig deeper, and to demand more. The electorate would be better served if that happened. It would be better served if billions of dollars in free media came with serious accountability, especially when politicians issue unworkable plans or make promises they can’t keep. (Applause.) And there are reporters here who know they can't keep them. I know that's a shocking concept that politicians would do that. But without a press that asks tough questions, voters take them at their word. When people put their faith in someone who can’t possibly deliver on his or her promises, that only breeds more cynicism.

There's plenty in the speech that I certainly agree with. The state of media coverage that has moved towards shallow entertainment and he said/she said journalism is sad. And it's good that the President called out that kind of stuff as well:

I think the electorate would be better served if we spent less time focused on the he said/she said back-and-forth of our politics. Because while fairness is the hallmark of good journalism, false equivalency all too often these days can be a fatal flaw. If I say that the world is round and someone else says it's flat, that's worth reporting, but you might also want to report on a bunch of scientific evidence that seems to support the notion that the world is round. And that shouldn’t be buried in paragraph five or six of the article.

He also highlighted some strong investigative reporting from the past and claims he's dismayed that we're seeing less of that today:

Whether it was exposing the horrors of lynching, to busting the oil trusts, to uncovering Watergate, your work has always been essential to that endeavor, and that work has never been easy. And let's face it, in today’s unprecedented change in your industry, the job has gotten tougher.

But he leaves out his own administration's actions as a big part of why the job of reporting has "gotten tougher." While he came into office promising "the most transparent administration in history" and one of his first official actions as President was to tell the entire federal government to default to revealing information in response to Freedom of Information Act (FOIA) requests, as we've detailed over and over again, the administration has actually been one of the most opaque, setting records for denying FOIA requests, and making it nearly impossible to get any information out of the government without a lawsuit.

Former NY Times Executive Editor, Jill Abramson, who's worked in journalism in DC for decades, noted that the Obama administration was the most secretive, by far.

"I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush's first term," Abramson told Al Jazeera America in an interview that will air on Sunday.

And part of her complaint was not just in how the administration refuses to reveal anything, but also in how vindictive the White House was against reporters and sources.

The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.

"Day-to-day intimidation of sources is also extremely chilling," she said.

Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.

"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."

And then, of course, there are the criminal lawsuits. The Obama administration has used the Espionage Act against more journalists and leakers than every other President in history combined... and doubled. And, as of two years ago, he had put media leakers in jail for nearly 50 times as long as all other administrations combined.

That is not supporting investigative reporting. That is threatening and intimidating journalists and their sources. Creating true chilling effects and scaring people away from doing the very work that the President insists the media should be practicing.

Way back in 2011, I saw Daniel Ellsberg speak, and he speculated that a key reason why President Obama was so incredibly hostile to a free and open press was because he was embarrassed by his own actions that they were investigating. Ellsberg pointed out that the previous president, George W. Bush was known for widely abusing the power of his position, but he seemed proud of doing so. President Obama, on the other hand, got elected with promises of moving away from such abuses and restoring civil liberties. But that didn't happen. Things went in the other direction under his watch and his command. So you could understand why the President remains less than keen about leaks and the media digging into things like mass surveillance of Americans, or secret drone bombing campaigns.

It's a shame that the President feels the need to berate reporters over failing to do real investigative reporting, when a big part of the issue is his own administration's concerted effort to make that much more difficult.

Filed Under: espionage act, foia, investigative reporting, journalism, leakers, president obama, transparency, whistleblowing

French Police Report On Paris Attacks Shows No Evidence Of Encryption... So NY Times Invents Evidence Itself

from the reporting! dept

Support our crowdfunding campaign to help us keep covering stories like these!

Over the weekend, the NY Times ran a big article providing a bunch of details about the Paris attacks from last year, now that the lone surviving member of those attacks has been captured in Belgium. The article is mostly based on a 55-page report put together by French antiterrorism police and given to France's Interior Minister. Someone apparently gave the report to the NY Times as well. And it does includes some interesting background info, including some previously unknown attack details. It also includes a bit about how the attacks were planned and carried out, with the most salient detail being that it's pretty clear that the team used burner phones (i.e., phones purchased just for this purpose, for a very short time, and not easily traced back to individuals):

They used only new phones that they would then discard, including several activated minutes before the attacks, or phones seized from their victims.

That's not all that surprising, of course. People have known about burner phones for ages. But the thing that stood out for me was the desperate need of the NY Times reporters to insist that there must be encryption used by the attackers, despite the near total lack of evidence of any such use. Immediately after the attacks, law enforcement and intelligence officials started blaming encryption based on absolutely nothing. Senator John McCain used it as an excuse to plan legislation that would force backdoors into encryption. And Rep. Michael McCaul insisted that the Paris attackers used the encrypted Telegram app, despite no one else saying that. In fact, for months, the only thing we'd heard was that they used unencrypted SMS to alert each other that the attacks were on, and made almost no effort to hide themselves.

But, amazingly, the NY Times takes evidence of a lack of encryption... to mean there must be encryption:

According to the police report and interviews with officials, none of the attackers’ emails or other electronic communications have been found, prompting the authorities to conclude that the group used encryption. What kind of encryption remains unknown, and is among the details that Mr. Abdeslam’s capture could help reveal.

But... that's not how encryption works. If they're using encrypted emails, the emails don't disappear. You still can see that they exist, and the metadata of who sent messages to whom remains. It's just that you can't read the contents of the emails. This is bogeyman thinking about encryption, where people think it does something it doesn't actually do. Sure, it's possible that the attackers used some sort of secretive way to communicate, but then the issue isn't encryption, but rather that they figured out how to hide the method by which they communicated. Or, you know, they just talked about stuff in person.

And then there's this:

One of the terrorists pulled out a laptop, propping it open against the wall, said the 40-year-old woman. When the laptop powered on, she saw a line of gibberish across the screen: “It was bizarre — he was looking at a bunch of lines, like lines of code. There was no image, no Internet,” she said. Her description matches the look of certain encryption software, which ISIS claims to have used during the Paris attacks.

OH MY! "A bunch of lines, like lines of code"?!?!?! Must be encryption! Or, you know, Linux. Or some other system that doesn't start with a graphical user interface. And even if it was encryption, then he wouldn't be looking at it in encrypted form. To read encrypted messages you decrypt them first. Nothing in this paragraph above makes any sense at all as "proof" of encryption. It just seems like proof of the reporters' technology ignorance.

It may very well turn out that the attackers used encryption. It very likely will be true in the future that attackers and terrorists will use encryption. But, this crazy moral panic going on these days where anything that people can't understand "must be encryption!" is reaching insane levels.

Support our crowdfunding campaign to help us keep covering stories like these!

Filed Under: encryption, evidence, journalism, paris attacks
Companies: ny times

Hulk Hogan's $115 Million Win Against Gawker Raises Serious First Amendment Questions

from the the-appeal-should-be-interesting dept

Well, this isn't necessarily a huge surprise, but Friday afternoon a Florida jury sided with Hulk Hogan in his lawsuit against Gawker, awarding him a fairly astounding $115 million (he had asked for $100 million) for posting a short clip of a Hogan sex tape along with an article about it. We hadn't written about this case recently, as it was getting tons of press coverage elsewhere -- but when we discussed it three years ago, when a Florida court first issued an injunction against Gawker, we noted the serious First Amendment issues here. Hogan (real name: Terry Bollea) had originally sued in federal court where it was more or less laughed out of court, mostly on First Amendment grounds. However, he was able to try again in state court, where it's astounding that it even went to trial in the first place.

Given how the trial played out, the jury result wasn't much of a surprise. The judge limited Gawker's defense options, blocking a few key ones, and even the judge (during jury selection) had expressed opinions that appeared to be distasteful of internet celebrity media coverage. On top of that, much of Hogan's lawyers' case was built around making Gawker, its owner Nick Denton, and the reporter who wrote the article, AJ Daulerio, look as... obnoxious as possible. It highlighted their snarkiness and dismissive attitudes. But none of that is illegal. Being a jerk is still quite legal. But given all that, it seemed pretty obvious how the jury would rule. Hogan was made to look sympathetic and Gawker was made to look obnoxious and snarky.

But... the First Amendment remains. It's kind of insane, in the first place, that there even was a trial at all on the question of "how newsworthy" the tape was. Whether or not you or I think running the tape is appropriate, the fact remains that courts should never be determining if something is newsworthy. That's not the role of the courts, and that's part of the reason why the First Amendment is so clear in barring regulations that restrict freedom of expression or the freedom of the press. I've seen a bunch of people saying that this case isn't that big a deal because the only thing it really restricts is publishing sex tapes, but it goes beyond that in several ways. First of all, that kind of thinking is dangerous in its own right. It's the kind of thinking that wipes out the First Amendment because some people can come up with excuses for killing off just about any kind of content, as long as you say, "Well, that's okay, it's just shutting down content that is mean." The issue with the First Amendment and free expression is that the whole reason we have it is to protect content we don't like. Because someday someone's not going to like something you said either.

But, still, to me the key thing is simply having a court tell a newspaper what is or is not "newsworthy." As Scott Greenfield wrote in his post on the jury's decision:

But that’s not the most serious problem this verdict creates. What this trial put at risk is the determination of what constitutes “newsworthiness,” what is sufficiently worthy of protection under the free press clause of the First Amendment. On the one hand, it’s asked, “why should the editorial decision of what is sufficiently newsworthy to be entitled to protection be left to the media?” On the other, the question is, “what happens if newsworthiness is left to the sensibilities of 12 nice people from Tampa?”

There is good reason to question why media gets to decide what constitutes newsworthiness. They’re not gods. They have no magic. There are vague journalistic ethics floating around, but they aren’t laws, and certainly aren’t hard and fast rules to which all media adheres. What gives them the right to decide?

The alternative is that newsworthiness is left to Ma and Pa Kettle to decide. While journalists have no magic, the Kettles have none either. So are we better off constraining your right to know by their feelings of ickiness? Would you really want disclosure of the Pentagon Papers decided by whether it offended some folks in Tampa that Daniel Ellsberg stole them? Should the scope of a free press be determined by guts of some yokels from the hinterlands?

Gawker, not surprisingly, has made it clear it will appeal, and it has a decent chance to succeed. Based on earlier rulings in this case, in which the higher courts have indicated they see Gawker's move protected by the First Amendment, Gawker is probably at least somewhat confident that the jury's award will get thrown out. I know that some activists had been pushing for Hogan to win, arguing that it would be a win for "privacy rights" -- but this is woefully shortsighted. Media organizations get threatened all the time with bogus threats of anything from defamation claims to publicity rights to copyright and more, over coverage that people dislike. Adding the possibility of huge fines for violating someone's privacy over reporting on stuff they'd prefer remain secret is going to put a serious burden on investigative reporting. It's going to lead to a lot of lawsuits where the real focus is on trying to silence negative coverage, rather than for any legitimate purpose. The chilling effects of this may be massive.

Even if you dislike Gawker (and I know some people do, quite a lot) and even if you dislike their snark -- and even if you are a strong believer in privacy, this ruling should be a major concern if you support free speech and the First Amendment.

Filed Under: first amendment, free speech, hulk hogan, journalism, newsworthy, reporting, sex tape
Companies: gawker

Judge Blocks Release Of Anti-Abortion Videos As The Arbiter Of Journalism

from the prior-restraint dept

Abortion is one of those issues that infuriates me chiefly because it causes everyone to retreat to whichever camp they call home while throwing nuanced discussions out the window. In case I'm not being clear: that's stupid. Around these parts, however, we love a good moral stand, and we love a moral stand all the more when it forces us to stand up for a person or group we don't particularly like. That's what a moral stand is, after all. Take the Center for Medical Progress, for instance. These are the folks that propelled the abortion issue back into the public consiousness through sheer force of will and by publishing videos of their interactions with Planned Parenthood staff that was equal parts subterfuge and crass editing. Even as political candidates continue to slam Planned Parenthood as a result of these videos, state investigation after state investigation has found that the carefully edited work done by CMP portrayed a lie and that no criminal wrongdoing was uncovered. In fact, CMP has found itself indicted in Texas (!), rather than Planned Parenthood.

In other words, whatever your opinion on abortion might be, these people suck. Editing videos to make it seem like something that isn't happening is happening isn't virtuous. It's called lying, and it's a no-no.

And yet it's also at least questionable to attempt to silence these people. Echoing a judge in California who tried to suppress the original videos, a federal judge has now issued an injunction on CMP from releasing further videos it has produced of undercover interactions with abortion providers.

The ruling, by US district judge William Orrick, also details for the first time how members of the group, the Center for Medical Progress, pursued their targets and tailored their footage to maximize political damage. At the annual meeting, hosted by the National Abortion Federation, activists operated off a “mark list” and, in one case, waited to approach a particular doctor until after she had been drinking.

Before releasing its first videos of Planned Parenthood employees, the center circulated a press release with “messaging guidelines”, Orrick wrote. The goal, the release said, was to inspire “Congressional hearings/investigation and political consequences” for Planned Parenthood, and increase “political pressure”.

Orrick previously blocked the center from releasing any footage taken at the NAF meeting. On Friday, he rejected claims by the Center for Medical Progress and its founder, David Daleiden, that its activities were a form of investigative journalism protected by the first amendment.

Again, operating under the stipulation that the CMP is disingenuous at best and that its videos are the worst kind of biased journalism, it's difficult to see exactly on what grounds Judge Orrick has deemed himself the arbiter of journalism standards. And he better have some hefty ground on which to stand, because prior restraint of speech isn't the sort of thing entered into lightly in America. Garbage journalism is still journalism, after all, and if we're really going to consider stripping speech rights from those that selectively edit content in order to make their point, then we're going to have to cull a great deal of the journalism out there as well.

Orrick focuses on how misleading the videos are and then claims them to not qualify as journalism. But, should these new videos indeed constitute defamation by being so egregiously edited, there are legal remedies for that. That's what the courts are for, after all. But to proactively attempt to restrain speech on the evaluation of a single judge?

For what it's worth, reports seem to suggest that the CMP has decided to ignore the judge's orders and has released at least some of the new videos anyway. That will likely lead to more legal action against the group. But it shouldn't. Speech is to be protected as a moral stance, even bad speech.

Filed Under: abortion, abortion rights, free speech, journalism, prior restraint, reporting, videos, william orrick
Companies: center for medical progress, planned parenthood

South Carolina Politicians Propose Ridculous Plan To Register Journalists... To Make A Statement About Gun Control

from the damn-those-journalists dept

In a move that seems pretty clearly designed to piss off journalists (but will likely backfire seriously), South Carolina State Rep. Mike Pitts, has introduced a bill to "register journalists" supposedly to make a "point" about gun control. The bill is, laughably, called South Carolina Responsible Journalism Registry Law which would "establish requirements for persons before working as a journalist for a media outlet and for media outlets before hiring a journalist. It would fine people for conducting journalism without registration or for hiring a "journalist" not on the registry.

From the details proposed so far, it appears that Pitts either has never heard of citizen journalists, or doesn't think they should be allowed to exist. Instead, only "approved" journalists will be allowed. And to be approved, you have to submit to "a criminal record background check, an affidavit from the media outlet attesting to the applicant's journalistic competence, and an application fee in an amount determined by the office." Reporters would need to renew their listing every two years.

Importantly (and unconstitutionally!), the bill lists out reasons why the state might "deny, revoke or refuse to issue a registration," including if the Secretary of State determines "that the person is not competent to be a journalist."

(1) The Secretary of State's Office may deny, revoke, or refuse to issue or renew a registration if the office finds that the person:

(a) has filed an application for registration that contains a statement that is false or misleading with respect to a material fact;
(b) has failed to pay the proper application fee or any other fee or penalty imposed pursuant to this chapter; or
(c) has failed to comply with any provision of this chapter.

(2) The Secretary of State's Office shall deny, revoke, or refuse to issue or renew a registration if a media outlet has determined pursuant to Section 40-85-40 that the person is not competent to be a journalist.

So, yeah. The whole First Amendment thing guaranteeing freedom of the press? Yeah, that kinda makes this whole entire bill unconstitutional. But, Pitts, apparently, isn't too concerned about the Constitution. As for what makes you not competent to be a journalist? Apparently, it includes not being objective enough. Really!

(A) A person is not competent to be a journalist if:

(1) within the three years before submitting an application for registration, the person has been determined by a court of law to have committed:
(a) libel, slander, or invasion of privacy; or
(b) a felony if the underlying offense was committed to collect, write, or distribute news or other current information for a media outlet; or

(2) as a journalist, the person has demonstrated a reckless disregard of the basic codes and canons of professional journalism associations, including a disregard of truth, accuracy, objectivity, impartiality, fairness, and public accountability, as applicable to the acquisition of newsworthy information and its subsequent dissemination to the public.

Considering how frequently people like to throw around charges of bias towards basically any reporting they dislike, you can just imagine how well that one will go over.

And what happens if you happen to practice journalism without being on the registry? Well, then you face increasing fines and eventually imprisonment:

A person who works as a journalist without registering pursuant to Section 40-85-30(B):

(1) for a first offense, must be fined not more than twenty-five dollars;
(2) for a second offense, is guilty of a misdemeanor and must be fined not more than one hundred dollars or imprisoned not more than fifteen days, or both; and
(3) for a third or subsequent offense, is guilty of a misdemeanor and must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.

Right. Not that this bill has any chance in hell of becoming law (or remaining law if it somehow did pass), but I think I'll be avoiding South Carolina for a while.

For what it's worth, Pitts told the Post & Courier newspaper that he was really trying to start a discussion about proposals to register gun owners. Because... reasons.

Pitts told The Post and Courier his bill is not a reaction to any news story featuring him and that he is “not a press hater.” Rather, it’s to stimulate discussion over how he sees Second Amendment rights being treated by the printed press and television news. He added that the bill is modeled directly after the “concealed weapons permitting law.”

“It strikes me as ironic that the first question is constitutionality from a press that has no problem demonizing firearms,” Pitts said. “With this statement I’m talking primarily about printed press and TV. The TV stations, the six o’clock news and the printed press has no qualms demonizing gun owners and gun ownership.”

That leaves aside some fairly big differences in the issue of gun control and a free press, but that's a debate for another website.

Even Pitts admits that he doesn't think the bill is going anywhere:

“Let’s be realistic; this is an election year,” Pitts said. “It is well into the second year and the Senate is not going to do anything this year and certainly not going to do anything controversial. So no, I don’t anticipate it going anywhere. Would I mind getting a hearing on it to further the debate and discussion? I would love to have that.”

If you squint, you can kinda sorta maybe see the logic behind the argument he's making, but it's difficult to see how he's kicking off any serious discussion of much beyond "Hey, you proposed a really stupid bill."

Filed Under: first amendment, gun control, journalism, mike pitts, registry, second amendment, south carolina