We all know that companies will occasionally use social media in a way that just comes off as wrong, either intentionally or not. For instance, one pizzeria's friendly promotion for free pie is another feminist league's gross attempt to view women's breasts. The point is that in a world that is more connected than ever, in which social media attempts can go viral quickly for reasons good or bad, a corporation had damned well better get the message right or risk the consequences.
One would think that news organizations and their employees, already adept at writing headlines, would be proficient in this. One would not, however, always be right in that regard. Take the example of a Fox News employee, Joyce Evans, who tweeted the following to followers of the local Philadelphia station:
Thought "Breaking Bad" was hot last Sunday? @FOX29philly See who's breakin' bad in SW Philly leavin' 6 people SHOT - Tonite at Ten!
— Joyce Evans (@JoyceEvansFox29) October 7, 2013
Your reaction range ought to be somewhere between cringe and laugh, depending on how dark your sense of humor is. Teasing a story in which multiple people were shot using that kind of terminology is something you just don't do. At the very least, those involved in the story are going to be outraged. More likely, you're going to outrage a good portion of those not involved who don't think that conflating entertainment with the real-life harm of a multiple shooting is something news companies should be doing.
So, as you'd imagine, the properly chastised Evans issued a sincere apology. Just kidding, she doubled down on her ignorance.
Last tweet NOT AST ALL A JOKE. Very real life drama was the point as oppose to one that end on tv. That was my point
— Joyce Evans (@JoyceEvansFox29) October 7, 2013
Mmm, no. Your point was that the story was "hot" in the same entertaining way as a fictional show. And nobody is buying the BS, either. Welcome to social media, Joyce!
Over the past several months, the Obama Administration has defended the government's far-reaching data collection efforts, arguing that only criminals and terrorists need worry. The nation's leading internet and telecommunications companies have said they are committed to the sanctity of their customers' privacy.
I have some very personal reasons to doubt those assurances.
In 2004, my telephone records as well as those of another New York Times reporter and two reporters from the Washington Post, were obtained by federal agents assigned to investigate a leak of classified information. What happened next says a lot about what happens when the government's privacy protections collide with the day-to-day realities of global surveillance.
The story begins in 2003 when I wrote an article about the killing of two American teachers in West Papua, a remote region of Indonesia where Freeport-McMoRan operates one of the world's largest copper and gold mines. The Indonesian government and Freeport blamed the killings on a separatist group, the Free Papua Movement, which had been fighting a low-level guerrilla war for several decades.
I opened my article with this sentence: "Bush Administration officials have determined that Indonesian soldiers carried out a deadly ambush that killed two American teachers."
I also reported that two FBI agents had travelled to Indonesia to assist in the inquiry and quoted a "senior administration official" as saying there "was no question there was a military involvement.''
The story prompted a leak investigation. The FBI sought to obtain my phone records and those of Jane Perlez, the Times bureau chief in Indonesia and my wife. They also went after the records of the Washington Post reporters in Indonesia who had published the first reports about the Indonesian government's involvement in the killings.
As part of its investigation, the FBI asked for help from what is described in a subsequent government report as an "on-site communications service" provider. The report, by the Department of Justice's Inspector General, offers only the vaguest description of this key player, calling it "Company A.''
"We do not identify the specific companies because the identities of the specific providers who were under contract with the FBI for specific services are classified,'' the report explained.
Whoever they were, Company A had some impressive powers. Through some means – the report is silent on how – Company A obtained records of calls made on Indonesian cell phones and landlines by the Times and Post reporters. The records showed whom we called, when and for how long -- what has now become famous as "metadata."
Under DOJ rules, the FBI investigators were required to ask the Attorney General to approve a grand jury subpoena before requesting records of reporters' calls. But that's not what happened.
Instead, the bureau sent Company A what is known as an "exigent letter'' asking for the metadata.
A heavily redacted version of the DOJ report, released in 2010, noted that exigent letters are supposed to be used in extreme circumstances where there is no time to ask a judge to issue a subpoena. The report found nothing "exigent'' in an investigation of several three-year-old newspaper stories.
The need for an exigent letter suggests two things about Company A. First, that it was an American firm subject to American laws. Second, that it had come to possess my records through lawful means and needed legal justification to turn them over to the government.
The report disclosed that the agents' use of the exigent letter was choreographed by the company and the bureau. It said the FBI agent drafting the letter received "guidance" from "a Company A analyst.'' According to the report, lawyers for Company A and the bureau worked together to develop the approach.
Not surprisingly, "Company A" quickly responded to the letter it helped write. In fact, it was particularly generous, supplying the FBI with records covering a 22-month period, even though the bureau's investigation was limited to a seven-month period. Altogether, "Company A" gave the FBI metadata on 1,627 calls by me and the other reporters.
Only three calls were within the seven-month window of phone conversations investigators had decided to review.
It doesn't end there.
The DOJ report asserts that "the FBI made no investigative use of the reporters' telephone records." But I don't believe that is accurate.
In 2007, I heard rumblings that the leak investigation was focusing on a diplomat named Steve Mull, who was the deputy chief of mission in Indonesia at the time of the killings. I had known Mull when he was a political officer in Poland and I was posted there in the early 1990s. He is a person of great integrity and a dedicated public servant.
The DOJ asked to interview me. Of course, I would not agree to help law enforcement officials identify my anonymous sources. But I was troubled because I felt an honorable public servant had been forced to spend money on lawyers to fend off a charge that was untrue. After considerable internal debate, I decided to talk to the DOJ for the limited purpose of clearing Mull.
It was not a decision I could make unilaterally. The Times also had a stake in this. If I allowed myself to be interviewed, how could the Times say no the next time the government wanted to question a Times reporter about a leak?
The Times lawyer handling this was George Freeman, a journalist's lawyer, a man Times reporters liked having in their corner. George and the DOJ lawyers began to negotiate over my interview. Eventually, we agreed that I would speak on two conditions: one, that they could not ask me for the name of my source; and two, if they asked me if it was ‘X,' and I said no, they could not then start going through other names.
Freeman and I sat across a table from two DOJ lawyers. I'm a lawyer, and prided myself on being able to answer their questions with ease, never having to turn to Freeman for advice.
Until that is, one of the lawyers took a sheaf of papers that were just off to his right, and began asking me about phone calls I made to Mull. One call was for 19 minutes, the DOJ lawyer said, giving me the date and time. I asked for a break to consult with Freeman.
We came back, and answered questions about the phone calls. I said that I couldn't remember what these calls were about – it had been more than four years earlier – but that Mull had not given me any information about the killings. Per our agreement, the DOJ lawyers did not ask further questions about my sources, and the interview ended.
I didn't know how the DOJ had gotten my phone records, but assumed the Indonesian government had provided them. Then, about a year later, I received a letter from the FBI's general counsel, Valerie Caproni who wrote that my phone records had been taken from "certain databases" under the authority of an "exigent letter,'' (a term I had never heard).
Caproni sent similar letters to Perlez, to the Washington Post reporters, and to the executive editors of the Post and the Times, Leonard Downie and Bill Keller, respectively. In addition, FBI Director Robert Mueller called Downie and Keller, according to the report.
Caproni wrote that the records had not been seen by anyone other than the agent requesting them and that they had been expunged from all databases.
I'm uneasy because the DOJ report makes clear that the FBI is still concealing some aspect of this incident. After describing Caproni's letters, the report says: "However, the FBI did not disclose to the reporters or their editors that [BLACKED OUT]." The thick black lines obliterate what appear to be several sentences.
If you were to ask senior intelligence officials whether I should wonder about those deletions, they'd probably say no.
I'm not so sure.
The government learned extensive details about my personal and professional life. Most of those calls were about other stories I was writing. Some were undoubtedly to arrange my golf game with the Australian ambassador. Is he now under suspicion? The report says the data has been destroyed and that only two analysts ever looked at it.
But who is this 'Company A" that willingly cooperated with the government? Why was it working hand in glove with the FBI? And what did the FBI director not tell the editors of the Times and the Washington Post when he called them acknowledging the government had improperly obtained reporter's records?
For years, we've talked about the ridiculousness with which many old school journalists want to blame the internet (or, more specifically Google or Craigslist) for the troubles some in the industry have had lately. It is a ridiculous claim. Basically, newspapers have survived for years on a massive inefficiency in information. What newspapers did marginally well was bring together a local community of interest, take their attention, and then sell that attention. What many folks in the news business still can't come to terms with is the fact that there are tons of other communities of attention out there now, so they can't slide by on inefficiencies like they did in the past.
Either way, it's always nice to see some in the industry recognize that blaming the internet is a mistake. However, Chris Powell, the managing editor for the Journal Inquirer in Connecticut's choice of a different culprit doesn't seem much more on target. Powell, who it appears, actually does have a journalism job (I can't fathom how or why) published an opinion piece (found via Mark Hamilton and Mathew Ingram) that puts the blame squarely on... single mothers. Okay, not just any single mothers:
Indeed, newspapers still can sell themselves to traditional households -- two-parent families involved with their children, schools, churches, sports, civic groups, and such. But newspapers cannot sell themselves to households headed by single women who have several children by different fathers, survive on welfare stipends, can hardly speak or read English, move every few months to cheat their landlords, barely know what town they're living in, and couldn't afford a newspaper subscription even if they could read. And such households constitute a rising share of the population.
Indeed. I'm curious if Powell can point to the stat on the "rising share of the population" who check off all of the following boxes: Single woman? Check! Several children by different fathers? Check! Need my welfare check to survive? Check. Can hardly speak or read English (don't ask how I filled out this hypothetical census form)? Check! Move every few months to cheat my landlord? You betcha. Barely know what town I'm living in? Hell, I don't even know what state this is. Couldn't afford a newspaper subscription? What's a newspaper? Anyway, Powell seems to think he has the stats on this "rising" population. I'd like to see them.
This actually sounds a lot more like the Reagan-era myth, rather than an actual group of real people. But, you know, apparently Powell has to reach out and blame some mysterious "other" force, and this is what he latched onto.
Of course, then it gets even more crazy. As David Quigg quickly pointed out, on that very same page where Powell wrote the above paragraph, there's a giant "rules of conduct" image which appears to be directed at those evil, evil commenters, because clearly Powell didn't pay much attention to the list -- especially number four.
Many in the press still seem to have difficulty recognizing that a whistleblower, even one disliked by the government, isn't somehow an automatic pariah to society. Instead, they like to lump them in with actual law breakers. Here are two recent examples. First up is the Washingtonian, who seems to think that Ed Snowden and Chelsea Manning should be viewed in the same light as actual spies -- people who famously chose to sell secrets to our enemies or to help those enemies against the US. Lumping Manning and Snowden in with Julius and Ethel Rosenberg, Benedict Arnold, Aldrich Ames, John Walker Lindh and others suggests a profound misunderstanding of what Snowden and Manning did: releasing evidence of significant wrongdoing by the US government to the press. You would think if anyone could understand it, it should be the press.
Still, I can understand how some confused people still want to argue that there's at least a continuum between some of those folks and Manning and Snowden -- even if I disagree wholeheartedly -- simply because of the releasing of classified information. I think it's very different to give that info to the press, which is then able to go through it and report on the stories (as both Snowden and Manning did) than giving it to a foreign power, but some people don't seem to get that distinction.
Yes, the argument they're making is that these are all examples of "missed signals in our government-clearance system." And we've certainly discussed how terrible the process is for getting top secret clearance these days. But, even so, lumping those four together is crazy. There's nothing about what Manning or Snowden did that should have set off alarm bells during the clearance process. They were people who loved America and then realized that the government was secretly doing things that they believed to be fundamentally anti-American, and they set out to try to fix that by alerting the public. That's pretty damn different than going someplace and shooting it up.
These are both subtle ways in which the press is trying to smear Snowden and Manning, by lumping them in with crimes of which they are not guilty.
Over at Cryptome today there's an absolutely incredible exchange between the Justice Department's Brian Fallon (from the Office of Public Affairs -- basically a PR guy) and Brad Heath, an investigative reporter from USA Today. Heath had sent the DOJ a FOIA request to the DOJ's Office of Professional Responsibility (OPR) asking basically whether or not the OPR had been involved in any investigation concerning the recently declassified FISA Court order, about how the NSA had misled the FISA court and abused its capabilities repeatedly. It certainly seems reasonable to try to find out if the DOJ then investigated those abuses and the NSA's misrepresentations to the FISA court.
The DOJ claimed that there were no responsive documents -- which even by itself is quite incredible. Heath appears to have then followed up with Fallon at the DOJ to seek comments. Fallon's response by itself is stunning:
I have an answer from OPR, and a FISC judge. I am not providing it to you because all you will do is seek to write around it because you are biased in favor of the idea that an inquiry should have been launched. So I will save what I have for another outlet after you publish.
Basically, this is the DOJ giving the middle finger to Heath, telling him that they have answers to his questions, but won't give them to him in order to purposely try to make him look bad by giving those quotes to someone else. Heath, quite reasonably, responded that he's been perfectly patient in waiting for an answer, but if none is forthcoming, he'll write the story as he has it (which, from the FOIA request, suggests that the DOJ did absolutely nothing about the NSA's abuses and misrepresentations to the FISC).
Fallon responds that he's "done negotiating" and claims that he "will work with someone else afterwards explaining why what you reported is off base." So, not only is the DOJ not answering the reporter, it's telling the reporter that the reporter has incorrect information but the DOJ refuses to correct the reporter in order to make the reporter look bad. Heath points out that he's not "negotiating" he's just asking for answers to basic questions. And then the real issue comes out in the DOJ's reply:
You are not actually open-minded to the idea of not writing the story. You are running it regardless. I have information that undercuts your premise, and would provide it if I thought you were able to be convinced that your story is off base. Instead, I think that to provide it to you would just allow you to cover your bases, and factor it into a story you still plan to write. So I prefer to hold onto the information and use it after the fact, with a different outlet that is more objective about whether an OPR inquiry was appropriate
Yeah. The DOJ is saying that it has answers to a reporter's questions, which it knows adds to the public debate about the DOJ's response to the NSA's activities, but because it's trying to stifle the report, it won't share the info with him. This is incredible. It's a clear move by the DOJ to try to silence the press with an effective threat: "if you agree not to publish your article, then we'll explain why we did what we did. If you do publish your article, we'll make you look foolish."
This is incredibly childish and unprofessional behavior by Fallon and the DOJ. Remember how this is supposed to be "the most transparent administration in history"? Apparently the DOJ thinks that only means "we'll be transparent if you only agree to write nice stuff about us." That's not how it works.
Heath points out that Fallon is wrong -- if Heath just wanted to publish the story he would have done so already, without waiting for a comment from the DOJ. And then he points out the obvious:
You can’t seriously ask me not to publish something on the basis of information you won’t share
Either way, this seems to highlight (once again) how the federal government, and especially the DOJ, views journalists these days -- especially investigative journalists. It will do anything possible to intimidate them into not publishing stories that might embarrass the administration. That's not transparency, it's thuggery and intimidation.
While it may not be the Snowden or Manning documents, all sorts of smaller "leaks" happen all the time. And, apparently, some people go absolutely crazy about it, such as the Los Angeles Memorial Coliseum Commission, which freaked out that someone had leaked 94 pages of internal emails concerning the Commission's attempt to give the University of Southern California control over the stadium. The emails suggest that the Commission broke certain laws concerning public discussions and procedures. The response, though, is what's fairly incredible. The Commission has been trying to argue that the leaked documents are "privileged communications" with lawyers, and therefore the LA Times (whose reporters received the documents) and various others, including California Governor Jerry Brown and Los Angeles Mayor Eric Garcetti should be ordered to "return" the documents.
Thankfully, the court has quickly rejected the request pointing out that there's been no evidence to support the claims of the Commission, and furthermore that the entire attempt to retrieve leaked documents is "grossly overboard."
"You're asking me to have parties, including the governor of California, return documents sent to him?"
The judge seems to recognize the absurdity of this attempt. Clearly, if that was a reasonable move it would basically do away with any possibility of whistleblowing. Of course, now that there's fighting over the documents, a minor scandal is getting that much more attention thanks, yet again, to the weakly attempted coverup.
Last week, we were among those who wrote about the latest revelations via the Guardian about how the NSA was sharing raw communications it had collected with Israeli intelligence. This is a big story for any number of reasons, but apparently the NY Times doesn't think so. When Public Editor Margaret Sullivan asked why, the managing editor basically said the story wasn't newsworthy:
He told me that The Times had chosen not to follow the story because its level of significance did not demand it.
“I didn’t think it was a significant or surprising story,” he said. “I think the more energy we put into chasing the small ones, the less time we have to break our own. Not to mention cover the turmoil in Syria.”
So, I asked him, by e-mail, was this essentially a question of reporting resources? After all, The Times could have published an article written by a wire service, like Reuters or The Associated Press.
“I’d say resources and news judgment,” he responded.
The resources issue is one I can understand totally. Here at Techdirt, we probably cover about one quarter to one third the number of stories we'd like to (which is also why I have about a thousand open tabs of stories I'm "hoping" to get to one of these days). But to claim that it's not "significant" or "surprising" or somehow newsworthy is pretty crazy. This is a major part of the story -- where the NSA keeps insisting that it is exceptionally careful with the data it collects, yet here it is handing off a ton of communications, including those of Americans, off to a foreign intelligence agency with basically no oversight. If the NY Times doesn't think that's newsworthy, the NY Times needs to recalibrate its newsworthy scale.
There have been debates on a setting up a special journalist shield law for many years, and every time it comes up it leads to something problematic, as various supporters suddenly want to narrowly define what a journalist is, often in a manner that carves out new forms of media. And, indeed, it appears that's exactly what happened this morning in the Senate Judiciary Committee. Eventually, the bill passed out of committee with a much broader definition than some feared, but one that still tries to define who is a journalist very specifically -- in a manner that "carves out" the specific kinds of journalism Congress doesn't like, such as Wikileaks.
The new amendment, brokered by Sen. Chuck Schumer, significantly expands on that definition. Now, a journalist would be defined as someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist.
In addition, the law would protect a person deemed appropriate by a federal judge, so long as their newsgathering practices have been consistent with the law.
This is better than it could have been, and giving judges the ability to go beyond the narrow definition is at least better than the alternative. However, it still is an attempt to carve out certain types of journalism that Congress is uncomfortable with -- and frankly, I'm rather uncomfortable with Congress thinking that its role. Chuck Schumer flat out said that he wanted this definition to exclude Wikileaks -- which is an operation that many of us believe absolutely is a journalistic operation.
"The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that," Schumer said at the time. "But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill."
In fact it seems like a good part of the hearing this morning was an attempt for Senators to show their contempt for the types of journalists they don't like. Senator Feinstein, who has been pushing for a very narrow definition for a long time, suggested at the hearing -- as if it were self-evident -- that no 17-year-old high school drop-out with a blog should be covered. But why? What if that high school drop out does actual journalism and breaks a story about, say, government corruption? Why shouldn't she be covered? Senator Jeff Sessions went to ridiculous lengths, arguing that journalists who reveal classified info shouldn't be covered. In other words, those who do real investigative journalism and expose government wrongdoing wouldn't be considered journalists if his amendment had passed (thankfully, it didn't). But, as Senator John Cornyn pointed out, just the fact that you had the Senate debating who should and who shouldn't be a journalist should be "chilling to us all." Though, of course, even Cornyn wanted to only cover journalists who are Americans.
In the end, what passed is extremely flawed and definitely not a step in a good direction. Once we reach the point at which we even allow Congress to set parameters for who should, and who should not be considered a journalist, we've gone too far. Because we know that setting that precedent will lead to further encroachments down the road. Furthermore, the current definition will almost certainly not protect journalists when they need it most, in stories involving "national security," more or less making this law a dead letter on arrival.
We've long advocated that any shield law shouldn't try to define journalists by their profession, but rather should focus on journalism by the process and actions taken. That makes much more sense, since today anyone can do journalism, even if they're not employed as a journalist.
However, the more I've seen this process play out, the more I'm convinced that any media shield law is a bad idea in that it tries to set up a separate tier of free speech in which a certain class of people or certain actions are "more protected" than others. The argument that we already have a media shield law known as the First Amendment is an increasingly compelling argument.
We already wrote about the latest reports coming out of the Snowden leaks, concerning how the NSA and GCHQ have effectively backdoored their way into breaking various encryption schemes by writing the standards themselves and recruiting internal spies within companies to covertly inject backdoors. The reporting on these documents was done jointly by The Guardian, the NY Times and Pro Publica. However, the NY Times coverage has one interesting tidbitnot in the Guardian:
Intelligence officials asked The Times and ProPublica not to publish this article, saying that it might prompt foreign targets to switch to new forms of encryption or communications that would be harder to collect or read. The news organizations removed some specific facts but decided to publish the article because of the value of a public debate about government actions that weaken the most powerful tools for protecting the privacy of Americans and others.
Pro Publica, for its part, put up a thorough and detailed explanation for why it chose to publish the story, which is well worth reading:
The story, we believe, is an important one. It shows that the expectations of millions of Internet users regarding the privacy of their electronic communications are mistaken. These expectations guide the practices of private individuals and businesses, most of them innocent of any wrongdoing. The potential for abuse of such extraordinary capabilities for surveillance, including for political purposes, is considerable. The government insists it has put in place checks and balances to limit misuses of this technology. But the question of whether they are effective is far from resolved and is an issue that can only be debated by the people and their elected representatives if the basic facts are revealed.
This is true in so many ways. As the NY Times report notes, there had been a public debate about all of this in the 90s, when there was the big fight over the Clipper Chip, an NSA-created form of encryption with backdoors. That fight ended with the NSA losing... and now it appears that they just ignored that and effectively spent the past few decades doing the same exact thing, but in secret. That deserves public exposure and discussion.
Pro Publica points out that this country is founded on a fundamental belief that you can't just "trust" the government, and yet the government is asking us to do exactly that here, as they prove time and time again not to be credible or worthy of trust.
There are those who, in good faith, believe that we should leave the balance between civil liberty and security entirely to our elected leaders, and to those they place in positions of executive responsibility. Again, we do not agree. The American system, as we understand it, is premised on the idea -- championed by such men as Thomas Jefferson and James Madison -- that government run amok poses the greatest potential threat to the people’s liberty, and that an informed citizenry is the necessary check on this threat. The sort of work ProPublica does -- watchdog journalism -- is a key element in helping the public play this role.
American history is replete with examples of the dangers of unchecked power operating in secret. Richard Nixon, for instance, was twice elected president of this country. He tried to subvert law enforcement, intelligence and other agencies for political purposes, and was more than willing to violate laws in the process. Such a person could come to power again. We need a system that can withstand such challenges. That system requires public knowledge of the power the government possesses. Today’s story is a step in that direction.
Kudos to all three publications for taking this step. It's unfortunate that they need to do this, but it's a sad statement on the way the US and UK governments have acted.
Update: The Guardian also mentions that intelligence officials asked them not to publish.
We just wrote about the ridiculousness of Barrett Brown's case, in which he's been in jail and facing a very long sentence mainly for copying a URL from one place to another, but also because the feds have been seeking a media gag. Tragically, the court has now granted that gag order. Neither Brown nor his legal team is allowed to speak to the media:
No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendant, the Government, or the administration of justice....
This gag order seems somewhat ridiculous. The idea that having Brown or his legal team talking to the press would somehow unfairly bias the jury in his case is ridiculous. It's perfectly reasonable to expect Brown and his legal team to try to draw attention to the ridiculousness of the case, and the only purpose of this sort of gag order is to silence the press and keep the story from getting the kind of attention it deserves, as yet another example of prosecutorial overreach by the DOJ.
