FCC Guards 'Manhandle' Reporter Just For Asking Questions At Net Neutrality Vote

from the not-so-free-press dept

The FCC apparently doesn't want to talk much about its plan to gut meaningful oversight of some of the least competitive companies in any American industry. Last week, we noted that the FCC had voted to begin the process of gutting popular net neutrality protections, ignoring the overwhelming public support for the rules registered at the FCC's website. This notice of proposed rule making (NPRM) is followed by a 90-day public comment period (you can comment here) ahead of a finalizing vote to kill the consumer protections later this year.

Since the FCC has been getting a few mean tweets over its decision to give consumers the policy equivalent of a giant middle finger, it's understandable that the agency is a bit on edge. That said, veteran defense beat reporter John Donnelly stated last week that this tension culminated in him being shoved up against the wall by two FCC staffers during their May 18 net neutrality meeting. Donnelly was, he stated, "manhandled" for simply trying to ask the agency a question:

The National Press Club was quick to issue a statement on the incident, saying that the FCC's security detail had even taken to following the reporter to the restroom for some unspecified reason:

"Donnelly said he ran afoul of plainclothes security personnel at the FCC when he tried to ask commissioners questions when they were not in front of the podium at a scheduled press conference. Throughout the FCC meeting, the security guards had shadowed Donnelly as if he were a security threat, he said, even though he continuously displayed his congressional press pass and held a tape recorder and notepad. They even waited for him outside the men’s room at one point. When Donnelly strolled in an unthreatening way toward FCC Commissioner Michael O’Rielly to pose a question, two guards pinned Donnelly against the wall with the backs of their bodies until O’Rielly had passed. O’Rielly witnessed this and continued walking."

Again, so it's clear, this wasn't even a particularly controversial reporter (not that it should matter), it was a widely respected veteran who has been covering FCC policy for more than a decade. Numerous members of the press were quick to express their disgust at the incident, and GOP Senator Chuck Grassley proclaimed that there was "no good reason to put hands on a reporter who’s doing his or her job."

This apparently all happened in front of FCC Commissioner Mike O'Rielly, who took to Twitter to apologize, but to deny that he saw the incident occur:

O'Rielly then proceeded, for some reason, to indicate that he was cold and hungry at the time the event happened:

Clearly the FCC's majority is a little sensitive, but there's absolutely zero justification for this kind of behavior. But it does continue to make it clear that, much like its plan to gut meaningful oversight of telecom duopolies, the fake anti-net-neutrality bot comments flooding the agency's website, or the FCC's potentially-false DDoS attack claims -- there's more than a few subjects the current FCC doesn't want to talk too much about right now.

Filed Under: fcc, john donnelly, journalism, mike o'rielly, net neutrality, reporting

Hypocritical CIA Director Goes On Rant About Wikileaks, Free Speech

from the doesn't-seem-to-care-much-for-either dept

The current administration is back to threatening free speech. On his way to being elected, Trump's passion for bogus defamation suits led him to declare he would "open up" libel laws to make it easier for him to sue people for saying things he didn't like.

This continued after the election. Trump tweeted his opposition to "fake news," calling out pretty much any major network that wasn't Fox News and calling them "enemies of the people." His new CIA director, Mike Pompeo, is similarly threatening the First Amendment. In his remarks at the Center for Strategic and International Studies, Pompeo went on a rant about Wikileaks -- one no doubt motivated by the site's recent data dumps on CIA computer exploits.

WikiLeaks walks like a hostile intelligence service and talks like a hostile intelligence service. It has encouraged its followers to find jobs at CIA in order to obtain intelligence. It directed Chelsea Manning in her theft of specific secret information. And it overwhelmingly focuses on the United States, while seeking support from anti-democratic countries and organizations.

It is time to call out WikiLeaks for what it really is – a non-state hostile intelligence service often abetted by state actors like Russia. In January of this year, our Intelligence Community determined that Russian military intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained through cyber operations against the Democratic National Committee. And the report also found that Russia’s primary propaganda outlet, RT, has actively collaborated with WikiLeaks.

This is an interesting change of heart for Pompeo. Last year, when he was running for re-election in Kansas, he seemed pleased with Wikileaks and its ability to obtain damning documents.

If you can't read/see the embedded, since-deleted tweet by Pompeo, it reads:

Need further proof the fix was in from Pres. Obama on down? BUSTED: 19,252 Emails from DNC leaked by Wikileaks.

So, Wikileaks is a non-hostile intelligence service when it serves Pompeo's ends, but not so much when it puts CIA hacking tools on public display. This was only part of Pompeo's rant, though. Once he was through being hypocritical, he went after the First Amendment. Here's Glenn Greenwald's take on Pompeo's comments:

Trump’s CIA Director stood up in public and explicitly threatened to target free speech rights and press freedoms, and it was almost impossible to find even a single U.S. mainstream journalist expressing objections or alarm, because the targets Pompeo chose in this instance are ones they dislike – much the way that many are willing to overlook or even sanction free speech repression if the targeted ideas or speakers are sufficiently unpopular.

Decreeing (with no evidence) that WikiLeaks is “a non-state hostile intelligence service often abetted by state actors like Russia” a belief that has become gospel in establishment Democratic Party circles – Pompeo proclaimed that “we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” He also argued that while WikiLeaks “pretended that America’s First Amendment freedoms shield them from justice,” but: “they may have believed that, but they are wrong.”

He then issued this remarkable threat: “To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.” At no point did Pompeo specify what steps the CIA intended to take to ensure that the “space” to publish secrets “ends now.”

Pompeo is now willing to go after publishers of secrets. No doubt he intends to go after whistleblowers and leakers as well, but he has publicly stated a desire to attack the messengers. Making this worse is Pompeo's hypocrisy, which means any targeting of publishers he attempts to engage in will be based on the content of the publications. Stuff he doesn't like will be targeted. Everything else will remain unaffected.

Of course, Pompeo's in the wrong branch of government to be engaging in First Amendment issues. The CIA is a foreign-facing intelligence agency. It should have nearly nothing to do with domestic whistleblower/leaker incidents, unless it happens to be CIA documents that are released. Even then, his agency won't be able to do anything more than an internal investigation. It's not a law enforcement agency, nor is it supposed to be engaged in domestic surveillance.

But Pompeo is the president's pick. He may think he's only speaking for himself and his agency, but his words echo the president's antipathy towards speech he doesn't like. And he has his president's hypocrisy: someone who loves Wikileaks when it's publishing documents that hurt the other team, but not so much when the leaks implicate people, parties, and agencies they hold dear.

Filed Under: free speech, journalism, mike pompeo, reporting, wikileaks
Companies: wikileaks

Man Who Used Facebook Live To Stream Birth Of Child Loses Bid To Sue All The News For Copyright Infringement

from the abort! dept

The saga of Facebook Live marches on, I suppose. The social media giant's bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy.

It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple's son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he'd done so, Kanongataa kept the stream public, leading over 100,000 people to view the video -- including some folks in several news organizations, who used snippets of the stream in news stories about the couple's decision to stream this most intimate of moments.

And then came the lawsuits.

In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women's Health. Last month, he sued Cox Communications.

In November, ABC lawyers filed a motion (PDF) calling their client's use of the Kanongataa clip a "textbook example of fair use." ABC used 22 seconds of a 45 minute video in order to produce a news story that would "enable viewers to understand and form an opinion about the couple's actions."

ABC's motion, embedded below, goes on to patiently explain to the court and, presumably, to Kanongataa's crack legal representation, that the entire point of the Fair Use defense was to allow small amounts of works to be used for the purpose of commentary and in news stories. Were lawsuits like this one to be victorious, news in the era of the image would come to a screeching halt. And, since the stories generated by these news organizations centered on the newsworthy nature of a couple streaming this sort of thing in the first place, use of such clips and images was perfectly in line with Fair Use usage in their reports.

The presiding judge, Lewis Kaplan, appears to have understood this correctly, having tossed the lawsuit against ABC and the other defendants.

Judge Kaplan's order shuts down Kanongataa's lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa's lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York.

This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place.

Filed Under: copyright, facebook live, fair use, kali kanongataa, news, reporting
Companies: abc, coed media, cox, iheartmedia, rodale, yahoo

Trump Not Even Waiting To Get Into Office Before Threatening The First Amendment, Press Freedoms

from the quick-on-the-draw dept

During the campaign and after his win, President Elect Donald Trump has been remarkably consistent on his calls for curtailing the rights afforded to the American people and our news organizations by the First Amendment. Between threatening lawsuits over campaign ads, suggesting that political protests ought to be stopped, and mocking free speech in more general terms, the soon-to-be President has positioned himself to be a challenger to long-held freedoms for which very real blood has been shed to protect.

But it seems the President Elect is not content to wait to enter office to try to begin this erosion of the First Amendment. Amidst a week of turmoil over the publication of comments about the classified briefing he, amongst others, received detailing intelligence findings about Russian involvement in the previous election cycle, Donald Trump has called upon Congress to investigate how this information was leaked to NBC News.

“I am asking the chairs of the House and Senate committees to investigate top secret intelligence shared with NBC prior to me seeing it,” he tweeted. "Before I, or anyone, saw the classified and/or highly confidential hacking intelligence report, it was leaked out to @NBCNews. So serious!" he added on Sunday.

We should note first the dissonance in Trump's stance and the Inception-esque nature of NBC's reporting. Essentially, NBC was reporting on a leak of a classified briefing that accused Russia of actively hacking, and then leaking, internal DNC communications. It's a leak about intelligence of a leak, in other words. And the DNC leaks were prominent talking points by Trump during the campaign, at times being read verbatim by the candidate at rallies, while at other times he simply read to the crowd news reports of the leaks. Those leaks were kosher, it seems, yet the NBC reports deserve Congressional investigation.

Perhaps more importantly, the prospect of Congress hauling journalists before the government to answer questions about their sources for the leaks takes the country back to a time prior to the precedent of not doing this.

Congressional committees, including the House and Senate intelligence committees, do technically have the authority to investigate the leak and subpoena NBC News reporters. But they are not likely to do so, media attorney Mark Zaid told POLITICO.

“I’d say there is little to no chance that Congress would get involved with any kind of classified media leak investigation,” he said. “Could they? Sure. Do they? No.”

In fact, the last time Congress did something like this was back in the 1970s, when a CBS reporter, Daniel Schorr, got his hands on a classified report from the House intelligence committee about illegal conduct perpetrated by the CIA. Schorr refused to name his source for the document in front of Congress, risking imprisonment, a punishment that was never actually levied. Given that the document Schorr used in his reporting, and subsequently shared with other news organizations, detailed only internal CIA practices and the government's assessments of them, returning to this kind of dangerous meddling by the government into news reporting over a document that deals with foreign spycraft would be strange indeed.

Strange, and dangerous, according to Joseph Califano, Jr., the man who represented Schorr during the ordeal.

Califano was dismayed after hearing about Trump’s tweet.

“That is a savage attack on the First Amendment,” he said. “We’ve been through this. Reporters have confidential sources. That’s become a hallowed part of the First Amendment and the ability of reporters to report. … These committees should not be getting into that.”

"If the government wants to find out who leaked and it’s somebody in the government, and if the intelligence community wants to find out who leaked, the Justice Department can go look at the CIA and look at all the national intelligence agencies," he said. "Not the reporter. That’s the wrong way to do it. That is really a serious erosion of a freedom that is essential."

But, as we've said, President Elect Trump has shown little regard for either the First Amendment or for the customs and norms of government action. Instead, he at times looks to wield government power as though it were his personal cudgel against his perceived political enemies. For anyone interested in a thriving and free America, whatever your political proclivities, whomever you may have voted for, the warning bells should be ringing loud and clear.

Filed Under: donald trump, first amendment, free speech, leaks, reporting

Potential New FCC Boss Blames Obama For The Washington Post's Botched Russian Utility Hacking Story

from the finger-pointin' dept

We've noted how one of Trump's top telecom advisors is Jeffrey Eisenach, a long-time Verizon consultant and aggressive opponent of net neutrality. Eisenach's one of three Trump advisors who have made it clear their top priority in the new administration will be to not only gut net neutrality, but to defang and defund the FCC as a consumer watchdog on telecom issues. Eisenach isn't just an advisor, he's also on the shortlist to be the next head of an agency he doesn't believe in.

But when Eisenach isn't busy dreaming about dismantling net neutrality, he can apparently be found writing logically incoherent op-eds over at the Wall Street Journal. In a strange little tirade posted on January 3, Eisenach quite correctly ridicules the Washington Post's recent false claim that Russians were busy hacking U.S. utilities. In short, a piece of common malware was found on one PC, and because the Washington Post couldn't be bothered to even call the company in question, the paper created a bogus narrative, based entirely on anonymous sources, that casually pushed the country closer to war.

Yeah, no biggie.

Eisenach starts off well enough, quite correctly illustrating the depth of the Washington Post's failure on the story, and how the malware was arguably run of the mill, and certainly not directly tied to the government:

"The kind of malware involved in these two intrusions is neither new nor particularly sophisticated. It is run-of-the-mill spyware that has probably been implanted on thousands of networks around the world, from home computers to those inside banks, power companies and government agencies. These bugs are freely available online, and the code found at the Democratic National Committee and the power company isn’t even the latest version. The notion that such a mundane piece of software reveals a new and ominous threat to critical infrastructure is laughable."

All true. But Eisenach's piece then takes a strange turn, in that it somehow tries to blame the Washington Post's awful reporting on... the outgoing President:

"Misleading the American people to advance a political narrative has been a hallmark of President Obama’s foreign policy. The most recent example is the administration’s attempt to conflate the hacking of the Democratic Party with potential cyberattacks on critical infrastructure...Cyberthreats pose a clear danger to national security, and building an effective defense will take a concerted effort by the Trump administration. Americans are right to be concerned. But by playing on those fears, the Obama administration is putting politics ahead of the national interest."

While the Washington Post was once again happy to quote all manner of anonymous, pearl-clutching intelligence sector insiders for its story (a bipartisan disorder for sure), Obama wasn't among them. Nor is there any indication that the Obama administration actively encouraged the Washington Post to trip over its own shoelaces and perform an epic, journalistic face-plant. Obama certainly has been no saint on cybersecurity, but to blame him for the Washington Post's dysfunction is more than a little strange, especially when the entire point of your article is to lament the senseless politicization of cybersecurity.

Someone might want to notify Eisenach that as a top advisor and potential new FCC boss, he's now the one in a position of power. If your goal is to demonstrate that partisan patty cake should be nowhere near technology and cybersecurity policy, why not demonstrate that with your actions -- instead of penning editorials that completely undermine the entire point you're trying to make?

Filed Under: cybersecurity, donald trump, fake news, fcc, hacking, jeffrey eisenach, president obama, reporting, russia

Media Critic Calls On Journalists To Be Obedient Stenographers

from the wtf? dept

Media critic Michael Wolff has a fairly long history of being hilariously wrong about just about everything. It's sort of his thing. He also has a history of being a ridiculously bad journalist in those rare moments when he tries to do journalism. We normally ignore him, but last week he said something so ridiculous and so crazy, that it deserved calling out. He called on journalists to be stenographers to those in power. Literally.

I think what’s required is for the media to do its job. I feel deeply the media hasn’t done its job. It’s abdicated its responsibility, has lost itself somewhere. Right now it’s an interesting moment where the media looks at Donald Trump as a threat instead of a story, possibly the biggest story of our time. Certainly a story that needs to be told in rather conventional ways. Who are these people, what motivates them, where are they from, where are they going — just basic storytelling.

I thought these people have won an election, so now is the time to go in and say who are you and what do you think. We are not in an oppositional moment right now; that has passed. I actually asked very few questions. I said tell me who you are. He talked and I took notes. Yes, you do want to be stenographers. That’s a very significant piece of journalism. We don’t want to hear [the reporter]. Write it down. You’re there to literally convey what someone in power says, and you bring it to people who want to know. Journalism is now a profession filled with people who are not journalists. They’re all under 25, talking to people under the age of 25. Let me send the message: stenographer is what you’re supposed to be.

[The move against normalizing Trump actions and language] are just institutional biases. This is formally saying we are biased and want to be biased, we are judge and jury.

This is wrong and idiotic on so many levels. First of all, a big part of the problem is that journalists have been stenographers for way too long. Their ridiculous "view from nowhere" where "person A says X, but person B says Y" journalism, without ever delving which is correct between X & Y, is a huge part of the problem. Calling bullshit on bullshit is not "bias." It's called accurately informing people. But Wolff apparently thinks we've had enough of that.

For years, calling journalists "stenographers" was a punchline to highlight how feckless many journalists had become, where they looked to pull punches to retain "access." There's a reason you have lots of articles online mocking journalists because they became stenographers. There's a reason that Stephen Colbert got such big laughs by calling White House correspondents stenographers. Because it was all too accurate:

Let's review the rules. Here's how it works. The President makes decisions. He's the decider. The Press Secretary announces the decisions. And you people of the press type those decisions down. Make. Announce. Type. Just put 'em through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you've got kicking around in your head. You know the one about the intrepid Washington reporter with the courage to stand up to the administration. You know: fiction.

Back when he performed that, it was satire. Now here's Wolff saying the same thing seriously. This is how far we've come.

The good thing about this election was that it finally shocked some reporters out of this mode, and it's insane to argue that that was the mistake. There is some truth in the fact that reporters got too focused on Trump, the person, as opposed to focusing on actual issues and policies, but to argue that they should just be stenographers is insane. Politicians thrive on misleading the press and Trump is an expert at it. He's the king of "hey, look over there" whenever any legitimate story against him comes out. He plays the press like a banjo. And, while I'm not convinced they'll figure out how to counter that and to do what the real press should do -- which is hold Trump accountable -- the idea that their role should be stenographers is insane.

Filed Under: donald trump, journalism, michael wolff, reporting, stenographers, truth

Mark Cuban Pulls Credentials Of Two Human Reporters For Mavs Games To Stave Off Robot Journalist Apocalypse

from the wut? dept

I have to admit at the start of this post that I rather like Mark Cuban. Not his reality show shtick, but rather what I've seen from him in interviews and his positions. On matters of innovation and intellectual property, I've found him rather refreshing, even as we at this site have poked him on the topic of net neutrality. That admiration makes it all the more jarring when Cuban goes somewhat off the rails on unrelated matters.

For instance, Cuban, who owns the NBA's Mavericks organization, recently pulled the press credentials of two sports journalists. Due to the vacuum of explanation for the move, those that covered it were left to speculation to explain why Cuban would do something like this. That speculation amounted mostly to Cuban either punishing ESPN, the employer of both journalists, for moving Mavs beat journalists into a national coverage role and thereby decreasing the exposure of the team, or pulling an ego trip on the journalists over the type of coverage the team was receiving. The latter was a rather unfair and an all too easy potshot at Cuban, while the former didn't make a great deal of sense as one of the journalists hadn't been on the Mavs beat for at least a decade.

But when Cuban finally commented publicly on his motives, they were revealed to make even less sense, which I wouldn't have thought possible.

Mark Cuban and the Dallas Mavericks pulled the credentials of experienced ESPN reporters Marc Stein and Tim MacMahon this weekend under mysterious circumstances. There was no obvious motive for the Mavericks to do so, and Cuban hasn’t said much to clear it up—but he broke his silence this evening. Cuban told the Associated Press he banned MacMahon and Stein to stave off the advances of the encroaching robot sportswriter horde.

Lest you think this is an unfair representation of Cuban's position, here are his comments directly from an email he wrote to the Associated Press.

“Maybe I will be wrong but I see a direct path from the trends in coverage of games we are seeing over the last couple years to the automation of reporting on games and the curation of related content,” Cuban wrote in an email to the AP. “This isn’t a knock on wire services or their reporters. They are valued and valuable in sports coverage.”

“While it may seem counterintuitive to ban someone from covering us as a way of stopping automation, it really was my only option,” Cuban said. “As is evident by the AP partnership with Automated Insights, it’s not if but when.”

To be clear, the AP does have some automated coverage being done for some sporting events, chiefly minor league baseball games for which paid press attendance doesn't really make sense. But there is not automated recaps being done of NBA games at this time and it is difficult to imagine a rabid sports fan base being satisfied with auto-recaps of the professional teams in major leagues that they so love. Whatever Cuban is really worried about, I'm struggling to understand how it can really be about robotic coverage of Mavs games.

And even if his motivations really are that simple, in what world does it make sense to remove the credentials for two human reporters to stave off SkyNET's NBA coverage?

It’s not a legitimate concern right now, and even if Cuban has decided to take a stand against automated recappers, banning two human reporters is an obtuse solution. ESPN said that they will rely on wire services for recaps of games that they don’t send reporters to, so if anything, all Cuban is really doing is ensure that Mavericks game recaps are written by a wire service, such as the AP, and not ESPN. If his bone to pick is truly with robot sportswriters, ESPN is not the institution to take it out on.

It's a sort of off-brand version of the Streisand Effect, in which you take action to stop something and, by doing so, directly encourage that something to occur. For someone generally smart, this move doesn't resonate. Regardless, I for one welcome our new robotic sports journalist overlords.

Filed Under: automation, mark cuban, reporting

Confused Reporter Doubles Down On Bogus Trump/Russian Server Story With 'I'm Just Asking Questions' Non-Apology

from the this-fucking-election dept

Franklin Foer is a pretty famous reporter. But this week he totally blew a story that a ton of other media operations had passed on (for good reason), claiming that there was an internet server out there owned by Donald Trump, that was communicating almost exclusively with a server for a Russian bank. It took all of a few minutes to debunk this as technological confusion on the part of Foer, and a whole heck of a lot of confirmation bias between Foer and the security researchers who had concocted this conspiracy theory with data that they're only supposed to be using for malware research. Of course, in this stupid election season where both candidates simply love to fling ridiculous accusations at one another, Hillary Clinton herself tweeted out two separate tweets about the article, and called it "the most direct link yet between Donald Trump and Moscow."

Except, of course, that was bullshit. It was nothing of the sort. It was some confused security researchers, teaming up with a reporter who famously doesn't like the internet or technology, getting a story so ridiculously wrong that it hurts. Some of us kept waiting for Slate to correct or just pull down the story, but they didn't. They put one small update and one small correction that didn't even touch on the core elements of the story that Foer completely flubbed.

On Thursday, instead, Foer released a new story, which he claims is him "revisiting" the story to evaluate "new evidence and countertheories." But that's also bullshit. The original theory made no sense at all. The "countertheories" are perfectly logical explanations backed up by data -- but Foer basically puts them all on equal footing and claims he stands by his original reporting. Ridiculously, Foer tries to debunk the claims that everyone made that this was just an outsourced Trump hotel spam server, by arguing that it never appeared on any spam blackhole lists:

Was the server sending spam—unsolicited mail—as opposed to legitimate commercial marketing? There are databases that assiduously and comprehensively catalog spam. I entered the internet protocal address for mail1.trump-email.com to check if it ever showed up in Spamhaus and DNSBL.info. There were no traces of the IP address ever delivering spam. Perhaps the spam went uncataloged because it was being sent to a single bank in Russia, but L. Jean Camp, an Indiana University computer scientist and a source in my original story, thought that possibility unlikely. “It’s highly implausible that spam would continue for so many months, that it would never be reported to spam blocker, or that nobody else in the world would see the spam during that time frame,” she told me.

Wait, what? This seems to be Foer doubling down on his ignorance and confusion about the story. Almost everyone discussing how this was a spam server was using "spam" in the colloquial sense of "marketing emails." They weren't arguing that it was a literal unsolicited email server spewing things like fake Viagra or fake diplomas (though, with Trump, I guess that last one is a possibility too). It's just a marketing server. People who stay at Trump hotels get on a mailing list. I get that kind of spam all the time from hotels or hotel chains I've stayed at. I don't categorize it as outright spam in the purely scammy sense, but it's marketing spam. But Foer and Camp seem to act as if everyone meant the scammy kind of spam.

And, as Rob Graham notes in yet another debunking of Foer, this shows a serious misunderstanding of how spam blacklists work anyway:

Cendyn is constantly getting added to blocklists when people complain. They spend considerable effort contacting the many organizations maintaining blocklists, proving they do "opt-outs", and getting "white-listed" instead of "black-listed". Indeed, the entire spam-blacklisting industry is a bit of scam -- getting white-listed often involves a bit of cash.

Those maintaining blacklists only go back a few months. The article is in error saying there's no record ever of Cendyn sending spam. Instead, if an address comes up clean, it means there's no record for the past few months. And, if Cendyn is in the white-lists, there would be no record of "spam" at all, anyway.

Later, Foer does consider the marketing email idea, but also tries to discount it.

Still, the marketing email theory has a few holes. A typical marketing campaign would involve the wide distribution of emails, spreading word of discounted prices and hotel openings far and wide. It seems unlikely that a campaign would so exclusively focus its efforts on a bank in Russia and a health care company in Michigan (which received a small batch of DNS look-ups), even if, as one critic has claimed, executives from Alfa Bank had a penchant for staying in Trump hotels.

Except that's misleading too. Because the information that has been revealed publicly does not prove that the server in question only communicated with the Russian server. In fact, others have argued it's not true.

Graham also raises some pretty serious questions about one of the "DNS experts" that Foer relies on, Jean Camp:

Jean Camp isn't an expert. I've never heard of her before. She gets details wrong. Take for example in this blogpost where she discusses lookups for the domain mail.trump-email.com.moscow.alfaintra.net. She says:

This query is unusual in that is merges two hostnames into one. It makes the most sense as a human error in inserting a new hostname in some dialog window, but neglected to hit the backspace to delete the old hostname.

Uh, no. It's normal DNS behavior with non-FQDNs. If the lookup for a name fails, computers will try again, pasting the local domain on the end. In other words, when Twitter's DNS was taken offline by the DDoS attack a couple weeks ago, those monitoring DNS saw a zillion lookups for names like "www.twitter.com.example.com".

He then goes on to reproduce that kind of merged hostname situation. Graham has a number of other examples of technical points that Foer just gets totally wrong. It's kind of embarassing actually. Rather than admit he's wrong, Foer tries to just post these "countertheories" and then pulls out a "well, I just hope that my reporting gets us closer to the truth."

I pursued this story because I was impressed by the emphatic belief of the experts I consulted, my suspicions were raised by the evidence they presented, and I thought I would be remiss if I sat on data that I believed deserves to be evaluated and understood before we elect the next president. The underlying context for the piece is that Donald Trump has cultivated a troubling relationship with Russia, and the U.S. government has identified Russia as trying to meddle in this election. Not every nexus between the candidate and Russia is nefarious. This one might well be entirely innocent or even accidental. As the New York Times reported on Tuesday, after my story published, the FBI looked into the server activity but “ultimately concluded that there could be an innocuous explanation, like a marketing email or spam, for the computer contacts.” Or maybe it’s less than innocent, as the computer scientists suggested and still believe. (I’ve checked back with eight of the nine computer scientists and engineers I consulted for my original story, and they all stood by their fundamental analysis. One of them couldn't be reached.) I concluded my account of these scientists’ search for answers by arguing that the servers and their activity deserved further explanation. Hopefully my story and the debate that has followed will move us closer to a fuller understanding.

Except, it seems like "the truth" almost certainly is that there's no story at all here, and in publishing as if it was a story, a whole bunch of people are making questionable claims. The whole "Russian connection" thing that keeps popping up in this election is getting pretty ridiculous. It may very well be that the Russians are trying to muck with our election. Lots of credible people are suggesting that's the case. But then coming up with a bunch of weak conspiracy theories based on technical ignorance and confirmation bias is just like being scared of monsters in the shadows.

Filed Under: donald trump, emails, franklin foer, reporting, rob graham, russia, spam
Companies: alfa bank, slate

Swedish Court: News Site Embedding A YouTube Video Guilty Of Copyright Infringement

from the ugh dept

Nearly a decade ago, just as YouTube was really getting popular, we questioned whether or not it would be considered infringement to merely embed a YouTube video if the content in that video were unauthorized. As we noted at the time, it seemed like a crazy idea that this should be considered infringing, given that embedding is just sticking a simple line of code on a website. No content ever actually is hosted or lives on that website. You're just telling a browser to go find content from the original YouTube source. For the most part, US courts have agreed that embedding is not infringing. And we'd thought that the EU had come to the same conclusion -- however that ruling was a bit vague, in that it focused on the embedding of authorized content, not unauthorized content.

Last month, however, there was the troubling EU Court of Justice ruling that found that mere links could be deemed direct infringement, especially if they were posted on a for-profit site. The ruling, somewhat dangerously, argued that any for-profit site that posted links should have the burden of checking to make sure the content they link to is not infringing, and it's fine to assume that they had the requisite knowledge when they link (this is, of course, crazy). And now we're seeing the reverberations of such a silly ruling.

Over in Sweden a court has taken that decision to say that a newspaper embedding an unauthorized YouTube video is infringing on the copyright in the video. Here are the details of the case, as summarized by the always excellent IP Kitten blog:

In 2012 the claimant (Rebecka Jonsson) filmed a bungee jumping session gone wrong in Africa.

Someone (not Ms Jonsson) uploaded the video on YouTube. On 9 January 2012 the YouTube video was embedded on the L'Avenir website run by the defendant, in the context of an article describing the incident.

The claimant had neither authorised the publication of the video on YouTube, nor its embedding in the L’Avenir article.

In her action before the Attunda District Court, Ms Jonsson claimed that L’Avenir had infringed copyright in her video by both embedding it on its website and publishing a frozen still of the video. She sought damages for EUR 1931 against the defendant, as well as award of litigation costs.

The court, looking at that bad ruling at the Court of Justice basically said, welp, L'Avenir is for profit, so it's infringing:

According to the court, it was “obvious” that L’Avenir had published the link to the claimant’s YouTube video with the intention of pursuing a profit [yet the court did not really explain what evidence supported the conclusion that in this case the defendant had a profit-making intention]. According to the court, L’Avenir had not been able to demonstrate that it had no knowledge of the unlicensed character of the video embedded on its website. Hence, L’Avenir was found to have infringed the claimant’s copyright by linking to the YouTube video without Ms Jonsson’s permission.

IP Kitten also notes that the court was supposed to then consider if L'Avenir was protected by various exceptions -- such as for news reporting -- but did not do so. This should be pretty troubling for all sorts of news sites online, who regularly embed videos or link to content without having the ability to determine whether or not they are infringing. This will make some fairly basic aspects of reporting online a huge liability risk. Linking to the wrong site or embedding the wrong video now puts you at risk of copyright infringement claims in the EU -- which is crazy. Copyright law is really broken.

Filed Under: cjeu, copyright, embedding, eu, for profit, rebecka jonsson, reporting, sweden
Companies: l'avenir, youtube

NBC Delayed Story About Trump's Access Hollywood Recording Over Fear That He Might Sue

from the chilling-effects dept

So just this past Thursday, we wrote about Trump's habit of threatening to sue the press over any coverage he considers negative. In the past, we've also covered his stated plans to open up libel laws. The comments on that post got pretty ridiculous after people who can't possibly be regular Techdirt readers complained that I was clearly just stirring up shit because I'm a Hillary Clinton supporter. This despite the fact that pretty much everything we've ever written about her has been critical too -- including her own ridiculous comments mocking free speech and praising censorship. It also ignores that just a few days earlier I had also sided with the Trump campaign when it received a bogus, censorious, cease & desist letter from the city of Phoenix. We're staying pretty consistent here: we don't support censorship, no matter whose team you're on. But, sure, I know. It's crunch time and people are really concerned about supporting their team, rather than actually discussing issues.

But this is an important issue. Threatening a free press with bogus defamation lawsuits and SLAPP (strategic lawsuits against public participation) claims are a really big problem. Case in point: on Friday, as I'm sure you're already aware, the Washington Post published a video of Donald Trump happily discussing sexually assaulting women, and how it's okay because he's a celebrity. As you also know, this became the story of Friday and the weekend, as it appeared to push a bunch of people who had previously supported Trump over the edge to pull their support (why this story rather than earlier ones, I don't fully understand, but...).

Either way, the story led to a few different varieties of followup stories about how the Washington Post got the story. And all of them note that Access Hollywood found the tape itself last Monday, and realized it was newsworthy. They then took it to their corporate parent, NBC, and some work was done on getting the story out -- but it kept getting pushed back. This led many to ask why it could possibly take so long for NBC to report on this. They knew the tape was authentic, so they didn't need to confirm that.

On Saturday, though, we finally got an answer: NBC held up the story because it was afraid of getting sued.

Although NBC and “Access” both recognized the newsworthiness of the tape and intended to air it, it first had to undergo a review by the company’s lawyers, the executive said. The executive was unaware of any specific legal issue raised by airing an 11-year-old recording of a presidential candidate who was apparently aware at the time that he was being recorded by a TV program.

However, the network was concerned that Trump could take legal action; the Republican nominee threatened to sue NBC last year after the network’s entertainment division dropped plans to air the Miss USA beauty pageant in the wake of Trump’s inflammatory remarks about Mexican immigrants. Trump backed off those threats when NBC sold its share of the pageant’s rights to him in September 2015.

That, right there, is a perfect example of chilling effects in action. Trump has threatened many, many in the press with bogus defamation claims, and sometimes has followed through. He's also happily admitted that he's filed bogus defamation lawsuits just to be a nuisance and cost reporters and publications he doesn't like money. Here's Trump on an earlier lawsuit that was clearly bogus from the start and thrown out as such:

"I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I'm happy about."

This is why it's so important to call out threats against a free press and free expression. Bogus lawsuits that scare even giant corporate conglomerates away from reporting on something that is clearly news, is a serious problem. I don't care which candidate you support or which candidate you hate. You should stand up against abusive litigation designed to stifle a free press. And you should support the effort in Congress to pass a federal anti-SLAPP law that would make it much more difficult for abusive defamation lawsuits to make reporters' lives miserable.

Filed Under: donald trump, first amendment, free speech, journalism, reporting, threats
Companies: nbc