FCC Takes A Break From Not Caring About Consumers To Hassle Some Landlords Over Pirate Radio

from the odd-priorities dept

It's been pretty clear for a while now that the Trump/Ajit Pai FCC simply doesn't give a shit about consumer protection, healthy markets, high prices, or competition. It's why they've effectively dismantled the FCC's authority and ceded US telecom policy-making to AT&T and Comcast lobbyists. All in the repeatedly disproven belief that gutting oversight of a bunch of politically powerful natural monopolies somehow results in free market magic. Of course the end result of thirty-years of this kind of policy thinking is Comcast, which pretty much speaks for itself.

Instead of doing one of its core jobs of protecting markets and consumers, the Pai FCC has spent an inordinate amount of time hyperventilating over pirate radio broadcasts. Every few months or so the FCC will crow about how it has cracked down on some piddly pirate radio broadcaster that (usually) is causing minimal harm (and can't pay the resulting fine anyway). Often, some of these broadcasts are catered to very narrow and underserved minority communities, and taking them offline isn't worth the time and enforcement cost unless it's causing significant, major harm to a legit regional broadcaster or public safety.

But recently the FCC took things to the next level, by using recently expanded authority under the PIRATE Act to target property owners and landlords who host those engaging in pirate radio broadcasts:

"The bureau issued an announcement that it is exercising the FCC’s new authority under the recently enacted PIRATE Act, which gave the commission a significant new hammer in its anti-pirate toolkit: “Parties that knowingly facilitate illegal broadcasting on their property are liable for fines of up to $2 million,” it stated.

Enforcement Bureau Chief Rosemary Harold said, “It is unacceptable — and plainly illegal under the new law — for landlords and property managers to simply opt to ignore pirate radio operations. Once they are aware of these unauthorized broadcasts, they must take steps to stop it from continuing in their buildings or at other sites they own or control."

There is, of course, a whole slew of secondary liability issues that crop up from the FCC cracking down hard on landlords that not only may not really understand they're hosting a pirate radio broadcast, especially given the "real" threat these often tiny pirate broadcasts pose. Some of the fines are upwards of $2 million; and landlords could wind up paying significantly more in penalties than the actual pirate broadcasters, who usually can't afford to pay the fines anyway. That's assuming FCC lawyers can show the landlord "knowingly tolerated" the broadcasts, which seems like a bit of an uphill climb.

It's also a bit odd to see the FCC aggressively flex here, given its complete and total apathy to its broader mission: protecting consumers, small competitors, and the market from giant regional monopolies like AT&T, Comcast, and Verizon. Yes, pirate radio broadcasts can certainly cause harm, especially if they're interfering with public safety broadcasts. But the scale of the actual harm is usually a far cry from the harm caused by letting natural telecom monopolies with thirty years of anticompetitive behavior under their belts literally dictate state and federal internet and telecom policy. It's odd to fixate on the smaller problem of pirate radio while being utterly apathetic to stuff like... rampant broadband monopolization.

Yes, these pirate broadcasters are breaking the law. Yes, they should just shift to streaming and avoid the legal hassle, risk, and potential harm they can cause. Yes, the FCC should investigate and punish pirate broadcasters when they're causing clear, significant, provable harm. But recall, this is also an FCC that's been totally apathetic to the way unchecked media consolidation has been harming marginalized minority voices for decades, so turning around and over-reacting to what are often creative (albeit illegal and potentially unwise) alternative solutions to navigate the US media landscape shows a lack of foresight and broader thinking.

Such high profile actions do, however, generate headlines that imply the Trump FCC hasn't been utterly negligent when it comes to doing its broader job of protecting the public at large because a bunch of giant monopolies told them to.

Filed Under: ajit pai, fcc, harm, landlords, pirate radio, secondary liability

Almost Every Word Of John McCain's Response To Chelsea Manning's Sentence Commutation Is Flat Out Wrong

from the hypocrites-in-congress dept

It's hardly a surprise that a bunch of people who have been fed a load of bullshit about what Chelsea Manning did years ago are now quite angry over President Obama's decision to commute Manning's sentence. But I don't think any are quite as painstakingly wrong as Senator John McCain. Someone should call up the Guinness World Record folks, because the wrong-per-sentence ratio of McCain's angry statement might just set a new world record. Let's dig in.

President Obama’s commutation of Chelsea Manning’s sentence is a grave mistake that I fear will encourage further acts of espionage and undermine military discipline.

Wait. Really? Manning has been in prison for seven years, with a significant portion of that being held in solitary confinement, sometimes being made to strip naked before being able to sleep. This was called "cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture" by the United Nations. You would think, of all people, Senator John McCain, who similarly was held in solitary confinement and tortured for extended periods while being held captive for 5 and a half years in Vietnam, would recognize that "only" 7 years of such treatment wouldn't exactly encourage more of Manning's behavior.

To put it more directly: who, in their right mind, is going to leak a bunch of documents thinking "oh, perhaps after going through literal torture, character assassination and basically hell on earth, it'll be okay, because maybe some other President will commute my insane 35 year sentence to just 7 years? No one. The idea that this commutation is going to lead to further leaks is ridiculous. If anything will lead to further leaks it's Manning's courage in seeing something wrong in the system and actually doing something about it.

In fact, it was things like Manning's courage that helped inspire Ed Snowden and other whistleblowers to step up. They didn't do it on the idea that they might "only" suffer 7 years of torture.

Second, what Manning did was not "espionage" and for McCain to suggest it is, means McCain either has no idea what he's talking about, or is lying. Manning leaked diplomatic cables and related information exposing vast wrongdoing by the US, to Wikileaks, who partnered with a number of respected press outlets to reveal the wrongdoing. That's not espionage. That's classic whistleblowing. And, yes, in case you've forgotten, Manning's leaks revealed a hell of a lot of wrongdoing by the US government.

It also devalues the courage of real whistleblowers who have used proper channels to hold our government accountable.

Oh come on. We've highlighted repeatedly how the "proper channels" claim is a complete joke. The "proper channels" have a long history of retaliating against whistleblowers such that everyone now knows the best way to destroy your life is to use the proper channels.

It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to Wikileaks, a virulently anti-American organization that was a tool of Russia’s recent interference in our elections.

First of all, Manning did not endanger the lives of American troops, diplomats and intelligence sources. During Manning's sentencing hearing, following her conviction, the US military admitted no one died because of Manning's leaks. So why does this myth still persist? Mainly because it's politically convenient to lie and pretend that whistleblowing leaks must "cost lives."

Thousands of Americans have given their lives in Afghanistan and Iraq upholding their oaths and defending this nation. Chelsea Manning broke her oath and made it more likely that others would join the ranks of her fallen comrades. Her prison sentence may end in a few months’ time, but her dishonor will last forever.

This has been pointed out over and over again: the oath that people take is to defend the Constitution. And a big part of that is calling out unconstitutional behavior by "this nation." Which is exactly what Manning did. Manning clearly felt that part of defending our nation and upholding her oath was to reveal wrongdoing by the US government. Furthermore, once again, the US military itself admitted that Manning didn't cause anyone to die.

Finally, as Marcy Wheeler correctly points out, McCain isn't just completely wrong with most of his statement, he's a total hypocrite as well. After all, McCain has been one of the most vocal supporters of General David Petraeus, a man who was convicted of giving classified information (much more serious than anything leaked by Manning) to his mistress. When there was talk of demoting Petraeus for this fairly serious breach, McCain said he was going to launch a Congressional investigation. And, more recently, McCain had this to say about Petraeus:

People make mistakes in life, they pay a price and move on.

So, uh, yeah. Compare that to his statement about the commutation (not pardon) of Manning's sentence and explain how McCain is not an utter and total hypocrite. If commuting Manning's sentence after "just" 7 years of torture and inhuman treatment will incentivize more leaks, wouldn't that also mean that Petraeus getting basically no punishment at all for leaking much more serious material will lead to more leaks, since it seems top government and intelligence community officials are clearly being given the message: it's okay to give up the nation's biggest secrets if it means you get laid.

Filed Under: chelsea manning, commutation, espionage, harm, john mccain, oath, whistleblowing

Colorado's Legal Weed Is Harming Nearby States So Much They Can Barely Produce Evidence Of Harm

from the 'it's-mostly-an-existential-harm,-I-guess...' dept

When Colorado made recreational marijuana use legal, neighboring states were quick to predict lasting damage would be done by this flouting of federal law. "It's still illegal here," they sued briefly, before being booted back to reality by the Supreme Court.

“In passing and enforcing Amendment 64,” the lawsuit said, “the state of Colorado has created a dangerous gap in the federal drug control measures enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining [their] own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”

It has turned out to be far less of a "stress" than they imagined. More than a few law enforcement agencies have been happy to place patrol cars at the border and snag alleged pot purchasers as they exit the state. This hasn't always worked out well for them, but nothing about these enforcement actions suggests law enforcement (part of the criminal justice system) was too bothered by the influx of drug busts.

Of course, it's kind of difficult to nail someone for a fully-legal purchase. Buying from an authorized weed dealer isn't like buying from someone 16 degrees removed from a Mexican cartel. The purchase is legal. Any travelling outside the legal boundaries isn't. But the fact that marijuana can be purchased legally in some states has led to shifting attitudes both inside and outside of law enforcement. It's no longer considered de facto criminal activity worthy of punishment.

Court decisions have played a small part in this forced loosening of drug enforcement efforts. One court told cops they couldn't presume everyone with a Colorado license plate was participating in drug trafficking. Another court informed eager locals they couldn't arrest (and seize assets from) people traveling to Colorado, even if they clearly stated they intended to purchase marijuana while there. The criminal nexus actually had to be in the jurisdiction covered by the law enforcement agency involved and "might do something illegal in the future within this jurisdiction" isn't probable cause for an arrest.

Even without these court decisions, law enforcement is finding there's not much point in panicking about Colorado's drug tourism industry. Kansas Attorney General Derek Smith wisely decided to hold off on boarding the Amendment 64 lawsuit bandwagon until he had some evidence of actual harm in hand. Turns out, he couldn't really find any.

[L]aw enforcement was reporting fewer – not more – marijuana-related offenses. This was confusing to Schmidt, who said he’d heard from law enforcement that Colorado marijuana was king.

So he invoked a 19th-century law to survey law enforcement agencies. And he received a huge response: 390 law enforcement agencies and district attorneys painted the first large-scale picture of the impact of Colorado’s legalization on Kansas.

The early results suggest it is having a big impact, but it may not all be negative.

The amount of marijuana being confiscated appears to be dropping quickly. But the potency of the marijuana is increasing.

It's good to know it's no longer just the Drug War increasing drug potency. Legalizing drugs appears to have the same effect, only without the corresponding drain on public funds. Even more interesting is the attitude law enforcement is taking, even with a potentially unlimited number of drug busts available. The issue of legality/illegality may appear black/white, but government employees tend to respect government entities, even when they do something like legalize a drug that often acts as a revenue stream for drug warriors.

In some jurisdictions, law enforcement are no longer enforcing marijuana laws much, and even when they do, it has become difficult to win convictions. Users may receive a fine in one county, probation or jail in another and told to move along in others.

[...]

Some officers won’t issue citations for marijuana possession, according to the report.

“Our local deputies and sheriff tell me they stop at least five cars a day with personal-use marijuana inside and absolutely refuse to issue a citation or report for it,” according to the district attorney’s office in Clark County. “They simply confiscate it and send them on their way.”

Some of this relaxation may be due to diminishing returns. More prosecutions are being undone by local juries composed of people who no longer believe firing up the occasional joint to be a criminal act worthy of jail time.

Some juries are refusing to hand out marijuana convictions.

“I have had a number of potential jurors during voir dire opine their belief that marijuana should be legal,” according to the district attorney in Labette County. “Oddly enough, these statements were made in non-marijuana cases.”

This is true for young and old, black and white, according to the district attorney in Leavenworth County. The elderly say it should be allowed for medicinal purposes, while young jurors tell the DA it’s “less serious than tobacco or alcohol, and they oppose the use of tax funds to prosecute marijuana cases.”

Of course, there are still some district attorneys who wish the rest of the criminal justice system would take their marijuana possession prosecutions more seriously, complaining that lax sentences have resulted in the "absconding" of dangerous pot purchasers to their home states. More pragmatically, those in charge of housing inmates are relieved more cases are dead-ending as they'd rather use their limited space to house actual dangerous felons, rather than Kansans caught on a weed run.

If anything, the information collected shows a more relaxed approach to enforcement would see nearly no appreciable harm come to the state of Kansas. Law enforcement resources aren't infinite and they should be focused on criminal acts with victims, rather than people legally purchasing a drug for recreational use. Unfortunately, despite the lack of evidence supporting theories of harm, state AG Derek Smith still holds out hope that he'll find something to justify a legal weed lawsuit.

“Here you have our sister state – we love them, we get along great with them most of the time,” Schmidt said. “But doggone it, they have done something that federal law says they may not do, and it’s Kansans who are paying a price for that.”

Any price Kansans are paying for Colorado's marijuana sins are being imposed on them by overzealous enforcement. A legal distributor in the next state makes it pretty difficult to build a local, fully-criminal marijuana distributorship that can compete on price or potency. Playing hardball with drug tourists does nothing but blow taxpayer dollars on looking out-of-touch and ineffectual.

Filed Under: colorado, harm, marijuana, weed

Former Patent Troll Admits That Patent Trolls Are Bad For Business And Innovation

from the speak-up dept

I've spoken to a few patent attorneys who have fought against patent trolls who have admitted to me that, at times, it's quite tempting to give up and join the other side, since patent trolling is fairly easy and incredibly lucrative. You just have to sell your soul and give up the idea that you're doing anything productive or good in the world, and instead become a pure bottom feeder. Someone who did exactly that is apparently Ira Blumberg, who is now speaking out about his experiences working on "the dark side" of patent trolling. Blumberg didn't end up going to one of those tiny patent trolls, but rather left a job at Intel to go work for Rambus, a company not everyone considers to be a patent troll, but which certainly has a history of being an aggressive patent litigant. From Rambus, Blumberg then joined the world's largest patent troll, Intellectual Ventures. He eventually left IV and is now at Lenovo. So he's been actively on both sides of the patent troll situation -- as an active participant in suing operating companies while working for companies that did nothing but license, and at companies that are relentlessly pursued by patent trolls.

And he's now willing to speak out and say that patent trolling is just bad. He mostly uses the more politically correct "PAE" or "patent assertion entity" rather than patent troll throughout the article.

It is now abundantly clear to me that PAEs are, in net, detrimental to business and innovation. Despite what they say, trolls are not making the world a better place for anyone. It is time they lay down their arms and allow companies to use the patent system in the way in which it was intended.

He also has no problem admitting the reality of most patent trolling: that it's not about quality patents. In fact, crappy patents are pretty good for trolling:

The sad reality is that the patents used by trolls do not need to be good for IV, or any PAE, to make money. Quality is not an issue when it costs $2-$3 million to find out whether a patent claim has merit, whereas settling costs “just” $500,000-$1 million. Trolls often aggressively push for extortionate settlements that far surpass the value of the IP because they know many companies will choose to settle rather than get embroiled in an expensive and drawn-out lawsuit. Their actions can wreak havoc on tech companies of all sizes.

Blumberg does note that patent trolls and their supporters claim that such companies are the only way to get independent inventors paid, but notes that this is not what's happening in reality:

In theory, there is some validity to this argument. It is true that individual inventors and smaller companies are not always well-compensated for their inventions. But in reality, the harm businesses suffer on this front is significantly outweighed by the harm caused by the exorbitant costs of patent litigation lawsuits. The settlements IV gains from tens of thousands of patents is vastly out of proportion with the value of the innovation being licensed.

Of course, he could go much further than that. First off, there are lots of ways for inventors to make money other than selling out to trolls. If their invention is really good, they can work with a company (or build one) to produce it. Some respond that some people don't want to do that, and to some extent the response is "too bad." There are lots of people who don't want to work for a living, and we don't necessarily say that companies have an obligation to pay them anyway. But, even if someone just wants to invent, they could easily team up with another entity to pass off their ideas and let that other company build them with a contractual agreement for royalties or some similar arrangement. The idea that you need patent trolls to provide liquidity is greatly exaggerated.

And this doesn't even get into the issue of how valuable patents are, really. It's quite rare that patents are actually disclosing true inventions in the tech space. Almost all patent disuptes are ones involving totally independent invention, where it's not the invention that's important, but the execution. And yet, patent holders and patent trolls like to pretend the idea is much more valuable than the execution.

Either way, it's good to see people like Blumberg recognize how dangerous his former employers have been to the world of innovation and to speak out about it. He's asking more people to speak out as well.

As someone who has spent time on both sides, I feel a call to speak out against frivolous and overpriced patent litigation. The work I did for both PAEs and corporations was certainly legal, but not the same: While I was always on the right side of the law, I prefer being on the right side of innovation.

Companies want to create technologies that matter five years from now and beyond, so patents continue to matter. Frivolous lawsuits and those demanding damages far in excess of the value of the allegedly infringed patent detract from our ability to push innovation and better products forward. I hope that many more voices in tech will join mine in decrying the harmful effects of needless patent litigation — our future depends on it.

Filed Under: harm, innovation, ira blumberg, patent troll, patents
Companies: intellectual ventures, lenovo, rambus

Sony Pictures, Which Hyped Up 'Harm' Of Hack, Now Tells Court No Harm Done To Employees

from the thread-that-needle,-sony... dept

In the wake of the Sony Pictures hack, the company went somewhat ballistic in trying to describe just how "harmful" the hack was. It brought on famed lawyer David Boies to threaten anyone who published any information from the hack, claiming that it was a violation of the First Amendment (yes, it told the media that publishing news was a violation of the First Amendment). The company also (ridiculously) threatened to sue Twitter, claiming that Twitter would be held "responsible for any damage or loss arising from such use or dissemination by Twitter." Thoughout it all, Sony kept arguing that this hack was a complete disaster and incredibly harmful.

However, now, in court, Sony is suddenly forced to tap dance around those claims and argue that there has been no harm at all done to the employees of the company, who have filed a class action lawsuit against Sony Pictures for failing to protect their data. In a filing first highlighted by Eriq Gardner at The Hollywood Reporter, Sony Pictures insists that basically there has been no harm whatsoever and mocks the employees who say otherwise, noting that their "PII" (Personally Identifiable Information) disclosed was not particularly private in the first place.

Plaintiffs’ experiences in the wake of the cyberattack are entirely consistent with the empirical consensus just discussed. To start, the PII disclosed for each Plaintiff varies widely.... For example, Mathis asserts only that her name, SSN, and former (not current) home address were disclosed.... (Even on that score, she appears to be wrong. Plaintiffs cite no evidence that her SSN was disclosed. The sole document they cite... has the SSN of a different Mathis.) For his part, Forster believes an array of his PII was disclosed, including his SSN and birthday, as well as outdated bank information, an invalid driver’s license, and former medical insurance information (which he admits are “useless” or “worthless”)....

What is more, some Plaintiffs maintain active online presences, which means that much of the PII they claim was disclosed in the cyberattack already had voluntarily been made available online. For example, while Forster complains that his title, place of work, and dates on which he joined and left SPE were disclosed, he acknowledges that he had posted that information to LinkedIn and thus could not be harmed by its disclosure.... Levine likewise admits that he has “put a lot of [his] life online.” ... For him and others, a wide range of PII was available online prior to the attack.

The other line of defense? If there is any harm, who can really say that it actually came from the Sony hack, rather than any other recent hack?

Plaintiffs (and, undoubtedly, unnamed classmembers) have been exposed to multiple breaches and incidents of identity theft involving various permutations of their PII.... To prove that any injury—or even risk of future injury—is attributable to the cyberattack, each classmember would have to show that this cyberattack, and not another event, caused any incident of identity fraud.

The other problem is that the only actual loss that any of the plaintiffs show right now was an unauthorized purchase on a credit card, but the filing points out, this employee was fully reimbursed (i.e., no loss) and it's also not at all clear that it happened because of the Sony hack.

Similarly, while Corona claims that somebody made an unauthorized purchase using his credit card after the cyberattack on SPE (for which he was fully reimbursed), he acknowledges that he also had unauthorized purchases on his credit card before the cyberattack, and that he could only “guess” at the connection, if any, between the more recent unauthorized purchase and the cyberattack.

To be honest, Sony's argument here is pretty strong. Courts have pretty consistently rejected class action lawsuits over data breaches when there are no actual losses, or where the losses are purely theoretical. It seems very likely that the former Sony employees here are going to lose.

But... it does seem rather amusing to see Sony -- which went on and on and on about all the "damage" the leak was going to cause -- now have to argue that its own employees experienced no harm at all...

Filed Under: class action, damages, emails, hack, harm, lawsuit, sony hack
Companies: sony, sony pictures

Actual Former Government Official Makes Totally Ridiculous Argument That Snowden's 'Harms' Are That Other Countries Are Angry

from the this-person-worked-in-our-government? dept

Sometimes you have to wonder about people who hold government positions and the absolutely ludicrous statements they make. Following Ed Snowden's big NBC interview, NBC apparently asked former US ambassador to Russia, Michael McFaul, to respond to Snowden's pretty convincing claims that all the hand-wringing about "harms" he caused have no basis in fact. In the interview, Snowden points out, accurately, that no one has yet been able to show a single individual harmed by the revelations. McFaul then makes what may be the single dumbest statement we've heard to date on this whole debate, arguing that the "harm" is that other countries now trust us less -- and that this is somehow Snowden's fault, rather than, you know, the fault of the NSA which is doing the surveillance:

But Michael McFaul, who left the ambassadorship earlier this year to teach at Stanford University, said that the revelations had damaged American diplomatic relationships with friendly countries who were upset by National Security Agency surveillance.

“That’s damage to the United States,” McFaul said. “If you’re a patriot, you don’t want to damage our relationships with our allies.”

Let me get this straight. Based on this line of thinking, we'd actually all be better off if the US media were entirely being censored and/or silent about Putin's actions in Crimea and Ukraine (and Russia), because knowing what he's doing probably makes the US trust Russia less. I'd think McFaul would recognize how silly that argument is in that context, and yet he seems to make it with the US. Similarly, we're better off not knowing about other countries spying on us?

Hell, earlier this week, we wrote about former CIA director and Defense Secretary Robert Gates revealing that our allies, the French, are almost as sophisticated as the Chinese in hacking the computers of American businessmen. Based on McFaul's ridiculous logic, Gates is no patriot and has "damaged diplomatic relationships with friendly countries" because he revealed questionable activities of the French intelligence agency.

It is downright idiotic to suggest that the revealing of misdeeds is the reason for any harm, rather than the misdeeds themselves. And yet this guy was our leading ambassador to Russia and is now a Stanford professor. And he doesn't seem to understand the difference between wrongdoing and revealing wrongdoing. Incredible. And disturbing.

Filed Under: diplomacy, ed snowden, harm, michael mcfaul, nsa, russia, surveillance

Pentagon Report That Supposedly Shows How Much Harm Snowden Caused... Actually Shows No Such Thing

from the staggeringly-misleading dept

For a few months now, the NSA's defenders -- primarily Director of National Intelligence James Clapper and House Intelligence Committee boss Rep. Mike Rogers -- have been waving around a "classified" report from the Pentagon, concerning how much "damage" Snowden's leaks have caused. Rogers had put out a press release about the report as if it was proof of how much harm was caused -- and based on that release, people quickly realized that the claims of harm were based on two very questionable assumptions

1. That everything Snowden "touched" while employed at the NSA, he took with him and gave to reporters -- amounting to something like 1.7 million documents.
2. That all of those files are in the hands of America's adversaries

As many people have highlighted -- both of those claims are extremely questionable. Glenn Greenwald and Ewan Macaskill have both admitted publicly that Snowden only gave them around 60,000 documents.

Either way, the Guardian has a new report with a redacted version of the Pentagon's report, obtained via a FOIA request by FOIA champion Jason Leopold. Leopold wrote a summary of the report, noting that the Pentagon claims "the scope of the compromised knowledge related to US intelligence capabilities is staggering."

However, Julian Sanchez quickly pointed out that the Pentagon is playing word games. It's saying (as noted in our assumptions) that the scope of what Snowden touched is staggering, not the actual damage. As Sanchez points out:

The first thing to note is that the Pentagon report does not concern the putative harm of disclosures about the National Security Agency programs that have been the focus of almost all Snowden-inspired stories published to date. Rather, the Defense Intelligence Agency's damage assessment deals only with the potential impact of "non-NSA Defense material" that the government believes Snowden may have obtained. Any harm resulting from the disclosure of NSA-related material – in other words, almost everything actually made public thus far – is not included in this assessment.

In fact, the unredacted portions of the report don't discuss published material at all. Instead, the Pentagon was assessing the significance of the information "compromised" by Snowden – all the documents they believe he copied, whether or not they ever see the light of day.

As Sanchez notes, it absolutely makes sense for the US government to assess the possible damage from other possible leaks based on what Snowden has touched, but it's wholly irresponsible for politicians and the press to misrepresent the report as looking at the actual harm caused by the leaks to date. Because that's not what the report says at all.

In summary:

In short: the Pentagon damage report concludes that the "staggering" cache of documents that Snowden might have taken (most of which he probably didn't) could potentially cause grave harm if disclosed to a foreign power (which, as far as we know, they haven't been), and assumed that only genuinely super-sensitive information gets classified (which top intelligence officials concede isn't true).

And yet, Snowden's critics are totally misrepresenting the report to say things it clearly does not say.

Filed Under: defense department, dod, ed snowden, harm, james clapper, mike rogers, pentagon

Claims About Snowden's 'Harms' Based On Two Assumptions Unlikely To Be True

from the fud dept

There have been multiple attempts lately by the likes of James Clapper and Mike Rogers to insist that the Snowden leaks have created massive "damage" to the US and have put people at risk. Over at the Daily Beast, Eli Lake looks into those accusations and notes that they're based on two assumptions, neither of which are likely to be true:

But the DIA assessment is based on two important assumptions. First, it assumes that Snowden’s master file includes data from every network he ever scanned. Second, it assumes that this file is already in or will end up in the hands of America’s adversaries. If these assumptions turn out to be true, then the alarm raised in the last week will be warranted. The key word here is “if.”

On the first assumption, that he took every piece of data he ever touched, that's almost certainly not true. Snowden himself has detailed a few times how he carefully went through the documents to make sure that what he was sharing was limited and not too broad. In fact, in his very first interview he stated:

"I carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest," he said. "There are all sorts of documents that would have made a big impact that I didn't turn over, because harming people isn't my goal. Transparency is."

And on the second question, Snowden's also made it fairly clear that he no longer has the documents and even US officials appear to be of the opinion that he never gave them to any foreign government. While there is the possibility that foreign agents have been able to get them from various reporters who have portions of the collection, there's still the first issue about what documents are actually included in all of this.

Either way, just the fact that officials are going around insisting that there's been tremendous harm based on two rather questionable assumptions shows just how far they're willing to go to fear monger about the whole situation when there's still been no actual evidence of any harm anywhere as a result of these leaks.

Filed Under: assumptions, dia, ed snowden, exaggerations, harm, nsa

Michael Hayden Admits That He Can't Prove Stories Revealing NSA Snooping Have Harmed National Security

from the oh-now-he-tells-us dept

With all of the focus on the Snowden revelations from the past few months, it's put new attention on the big story from 2005, in which the NY Times revealed President Bush's warrantless wiretapping program, run by then NSA boss Michael Hayden. The NYT story, famously, was held for thirteen months as the government tried to do everything to block it from being published -- especially during the 2004 election season. The claims were always the same: publishing the story would be a massive threat to national security -- just like you hear today with the Snowden revelations. The NY Times public editor, Margaret Sullivan, decided to revisit that decision to delay the publication for over a year with various parties involved in the decision, and see how they feel about it now. There are a few interesting tidbits, but the one that struck me most is actually buried in a parenthetical. It's Michael Hayden admitting that, despite all his whining about the harm of revealing this stuff, there's no evidence it actually did any harm:

And even Mr. Hayden told me that he can’t prove any harm to national security from the publication of the eavesdropping stories -- then or now.

The "then or now" seems rather important. First of all, with the older story, nearly a decade forward and no proof of harm? That seems rather revealing, since they insisted so strongly that publication would be horrific and would ruin their chances to spy on people (sound familiar?) Furthermore, he's now admitting that he can't prove harm from the recent stories either -- even though he seems to have no trouble going around fear mongering, claiming such damage has been done, at every other opportunity.

The article claims that the NY Times learned its lesson from this, and that it's much less inclined to take the government's word on claims that publishing a story will cause national security harm anymore.

“I think our story broke the fever,” Mr. Risen said. “We’re much better now” about pushing back against government pressure. Jill Abramson, the executive editor (then managing editor), has not only defended the Snowden-related stories as squarely in the public interest but has had Times reporters and editors collaborating with The Guardian and ProPublica on Snowden-sourced stories.

Hopefully, that remains true. It's easy for the government to fear monger over these things, but every time they do, it's difficult to think of a single example where the claims of harm on our national security have ever been accurate.

Filed Under: harm, michael hayden, national security, nsa, nsa surveillance