No Surprise: Judge Says US Government Can Take The Proceeds From Snowden's Book

from the contracts,-man dept

Back in the fall, we noted that, even if we thought it was silly, under existing law, it seemed highly likely that the DOJ would win its lawsuit against the publisher for Ed Snowden's memoir, Permanent Record. As I noted at the time, the government and the intelligence community in particular take the issue of "pre-publication review" incredibly seriously. Basically, if you take a job in the intel community, you sign a lifelong contract that says if you ever publish a book about anything regarding the intelligence community, you have to submit it for pre-publication review. Officially, this is to avoid classified information showing up in a book. Unofficially, it also gives the US government a sneak peek at all these books, and sometimes (it appears) allows them to hide stuff they'd rather not be public.

As I noted when the lawsuit was filed, there is another ongoing lawsuit challenging pre-publication review requirements on 1st Amendment grounds -- but given the state of the law today, it seemed pretty clear that Snowden would lose this case. And, that's exactly what's happened. Judge Liam O'Grady (who seems to end up with all sorts of high profile cases) easily ruled in favor of the government last week. In short, the court says: an unambiguous contract is an unambiguous contract.

The plain meaning of the contracts set forth above require prepublication review of a signatory's public disclosure which refer to, mention, or are based upon, classified information or intelligence activities or materials. The contractual language here is clear, and this Court is therefore legally barred from accepting extrinsic evidence of course of performance, course of dealing, and common trade practices.

That was in response to Snowden's legal team from the ACLU trying to seek discovery to get more evidence to support his case before it went up for dismissal. No go. In the end, a contract is a contract:

The terms of these Secrecy Agreements are clear, and provide that he is in breach of his contracts and the fiduciary duties identified therein if his public disclosures include the type of information and materials the contracts required to be submitted for prepublication review. Specifically, the CIA Secrecy Agreement requires prepublication review of "any writing... which contains any mention of intelligence data or activities, or contains any other information or material that might be based on" certain information, which was "received or obtained in the course of [CIA] employment... that is marked as classified or [known to be classified or known to be in the process of classification determination]."... Similarly, the NSA Secrecy Agreement require prepublication review of "all information or materials... prepared for public disclosure which contain or purport to contain, refer to, or are based upon protected information," which is "[i]nformation obtained as a result of [a] relationship with NSA which is classified or in the process of a classification determination," including but "not limited to, intelligence and intelligence-related information."... Because there is no genuine dispute of material fact that Snowden publicly disclosed the type of information and materials described above in Permanent Record and his speeches, the Government is entitled to summery judgment on both Counts.

As Snowden pointed out when this happened, all this has really done is to draw more public attention to his book, of course. But, I can see from the DOJ's viewpoint that it may have felt that if it didn't go after Snowden and Macmillan for this, then others might question why they had to go through pre-publication review as well.

Filed Under: cia, doj, ed snowden, liam o'grady, nsa, permanent record, prepublication review
Companies: macmillan

Should The Media Voluntarily Embrace A 'Right To Be Forgotten'?

from the difficult-questions dept

It should be no secret that I'm not at all a fan of the right to be forgotten, which is a European concept, as currently employed, that allows people to get old news stories about them removed from search engines (there's more to it than that, but that's the basic explanation). To me, it seems like an attempt to bury history and facts, and that's dangerous. We've also seen too many cases of people trying to abuse it to hide spotty historical records that deserve to remain public. However, the excellent Radiolab podcast a few weeks back had a fascinating episode exploring the idea of the news media voluntarily agreeing to "forget" certain stories. More specifically, last year, Cleveland.com adopted a policy that would let people apply to be "forgotten" by the online news publication. They invited Radiolab folks to be present for one of the meetings where the staff debates applications.

And it was a lot more interesting and challenging than I initially thought. Indeed, it brought back the conundrum I faced a few years ago, in which we weren't sure how to deal with someone who made a very compelling case why we should delete a story about them. We refused, and were also troubled by the fact that that story involved a federal court case that was then disappeared by the court itself. Courts shouldn't be disappearing public dockets like that. But, in reporting on that, given the compelling argument that had been made to us, we didn't highlight what the original story was or who the person was -- because of an inherent recognition that this person didn't deserve any more trouble.

I'm still quite uncomfortable with the idea that a media organization would agree to go back and change stories to remove names (or, in some cases, to delete entire stories), as that is (again) a rewriting of history. Because that can certainly cause lots of other problems down the road as well. But the Radiolab episode is still worth listening to, as it does a really good job of laying out the difficult choices and tradeoffs, and the challenges that Cleveland.com takes on in making those decisions -- weighing a bunch of different factors.

In many ways, it's another side of the whole "content moderation" debate, and how various platforms should make decisions on moderation. There are many, many difficult choices and no easy answers. I still find the overall concept of the Right to Be Forgotten quite troubling -- especially when it's enforced by the government. However, it's interesting and informative to learn about Cleveland.com's thoughtful approach to the matter, even if I'd probably come down in a different end position.

Filed Under: history, journalism, memory, permanent record, right to be forgotten
Companies: cleveland.com

DOJ Decides To Help Publicize Snowden's Memoir By Suing Him For Failing To Run His Book By The CIA And NSA First

from the thanks-for-the-publicity dept

As you've probably heard, Ed Snowden just came out with his memoir, entitled Permanent Record. I haven't yet had a chance to read it, but it looks fascinating. Snowden obviously can't do the usual book tour for this kind of thing, but he has been doing a fresh round of very interesting interviews about his current situation -- including saying that he'd be willing to come home to the US and stand trial if only the US actually allowed a public interest defense for Espionage Act claims. As we've pointed out for years, one of the (many) problems with the Espionage Act is that it literally does not allow a defendant to explain why they leaked certain information, and assumes that it is equally nefarious to sell secrets to foreign enemies as it is to blow the whistle by informing the press of unconstitutional surveillance.

Still, the DOJ decided to help boost sales of Snowden's book by suing him for all of the proceeds, over violation of the contract he held with both the CIA and the NSA. The lawsuit is fairly straightforward. Anyone who works in the intelligence community signs a lifetime contract that forbids publishing any manuscript or speech related to their work, without first getting "pre-publication" review.

The government takes this very seriously (in fact, too seriously). Indeed, just recently there was another controversy about pre-publication review regarding a memoir and TV show by former CIA officer Amaryllis Fox. And, for reasons like these, it seems that -- purely on a legal basis -- Snowden and his publisher have a high likelihood of losing the lawsuit (in part because the law is against him here, and in part because he's unlikely to be in a position to contest it from Russia -- a point we'll discuss more below).

That said, pre-publication review is a hugely sketchy process. Earlier this year, a bunch of former intelligence officials actually sued the government, arguing that the requirement is unconstitutional. That case is still making its way through the courts, with the government pushing for it to be dismissed. However, there are other recent stories about what a bullshit process pre-publication review tends to be. It involves multiple different contracts with unclear definitions and unclear requirements. Recent revelations have also shown that the feds often use the process to purposefully delay books that will reflect poorly on the government, while speeding through ones that support the government's position, or are coming from high-profile former officials.

The ACLU, which is defending Snowden (and also involved in the other pre-publication lawsuit mentioned above) quickly put out a statement claiming that the book doesn't reveal any new secrets and didn't need to go through review:

"This book contains no government secrets that have not been previously published by respected news organizations. Had Mr. Snowden believed that the government would review his book in good faith, he would have submitted it for review. But the government continues to insist that facts that are known and discussed throughout the world are still somehow classified.

“Mr. Snowden wrote this book to continue a global conversation about mass surveillance and free societies that his actions helped inspire. He hopes that today’s lawsuit by the United States government will bring the book to the attention of more readers throughout the world.”

Snowden, for his part, seems to have had a bit of fun about the whole situation on Twitter, pointing out how it's helping to attract more attention to the book:

Oh, and also this:

Though, the framing of this as being about the government "not wanting" people to read the book is not entirely fair. They are not suing to stop the publication, which would be a much tougher task. They're suing for the money -- and as much as I disagree with the government on this, given the current state of the law, it's totally understandable why it feels the need to. Without this lawsuit, lots of others who are going through, or intend to go through, pre-publication review will point to the Snowden situation and say "but what about that guy?"

Anyway, as noted, the government likely does have a strong case, even as bullshit as the pre-publication rules are. And, so, perhaps this means that the Treasury will get a bit of money that should end up with Snowden or his publisher. But, if the goal (as Snowden has insisted) was merely to continue the conversation and get his story out there, well, the DOJ just ended up promoting the book quite a bit. Similar situations in history have, not surprisingly, driven up demand for books:

But, if the DOJ is collecting the revenue on the other end, perhaps it doesn't care?

There is one other element here that seems worth mentioning. Up at the top, we pointed out that Snowden says he'd come back to face trial if he was allowed to present a public interest defense for his whistleblowing. The fact that the government still refuses to allow this also makes it nearly impossible for Snowden to even fight this lawsuit, because the government will quickly argue that he's a "fugitive" and thus not able to be represented in court (as it did with Kim Dotcom). That seems to highlight the wider fallout of the over-aggressive nature of the Espionage Act, and the inability to use a public interest defense. It makes it that much more difficult for someone like Snowden to defend his own 1st Amendment rights. And that seems unfortunate.

Either way, while I can understand why the DOJ is doing this, and recognize that it's likely to win, that doesn't mean that it's the right move or a good thing overall.

Filed Under: cia, doj, ed snowden, nsa, permanent record, pre-publication review

When Everything You've Ever Said Can & Will Be Used Against You By Anyone... Forever

from the anonymity-suddenly-seems-a-little-more-interesting dept

Leave it to Rick Falkvinge to add a bit of perspective on the various debates going on in the world today concerning both data retention and anonymity, by telling people to think about how you might act knowing that anything and everything not only can, but will be used against you, by pretty much anyone at some point in the future. I'm sure some people will insist that they have no problem with this. But think about how many little things you do that could be taken out of context or used against you in some manner or another.

It�s the equivalent of a police arrest in the United States, where you are told � very seriously � that �Everything you say can and will be used against you in a court of law�. What happens? Well, most people take the hint and shut up completely.

Now, imagine if it wasn�t just a court of law as in the arrest scenario, but that anybody that could see anything you had ever said. Future employers, dates, law enforcement� not just in your own country, but also every country you�ll ever visit in the future. Also, imagine that this holds true for the rest of your life, with the laws undergoing change in the next 60 years or whatever number of years you have left, and imagine what you say today is going to be repainted in the light of 60 years from now. (There was nothing said in 1941 which was common knowledge and social glue then, but which would be terribly embarrassing and a complete block-out if found today, was there?)

It would become practically impossible to say� anything remotely challenging. At least if you wanted a future. You may still talk about the weather.

Many people are willing to share a lot of their life online. But I think almost everyone likes to keep at least some aspects of their lives private. Efforts to wipe out anonymity and to record data for as long as possible put the things you'd rather be kept secret at risk.

Filed Under: data retention, permanent record, privacy

Former College Journalists Learning That Google Is Their Permanent Record

from the and-they-don't-like-it dept

We've discussed in the past how Google has become a version of the mythical permanent record that our teachers warned us about in school, but for some it's becoming embarrassing. We've all heard the stories of folks who lost jobs or dates due to their social networking profiles, but what about what they wrote in their college newspaper? Apparently, professional journalists are so upset about the quality of their work from when they were in college, that they're asking universities to take down their old writings, especially since it sometimes ranks better in Google than their modern work. Thankfully, most college papers are refusing to take down the content, but it is a reminder (once again) that everything you write can, and will, be used against you sooner or later.

Filed Under: journalists, permanent record

Now That NY Times Archive Is Online... People Wish They Could Forget The Past

from the so-what-do-you-do? dept

It's interesting to hear that the New York Times gets approximately one request a day to delete an old article, because we get those requests at Techdirt as well (though, not nearly as often). In both cases, it's often due to someone who is upset that, even if the old article was accurate at the time, it's no longer the case any more -- but Google still calls it up on searches. Clark Hoyt, the current Public Editor of the NY Times discusses the struggle the paper has about what to do in those circumstances. Traditionally, they've just said "sorry, we can't do anything" to people. Now there are cases where they may add a correction or an additional note on incorrect information. There's even a bizarre (and somewhat silly) suggestion that they should have their archives simply "forget" certain "less important" news.

However, what may be most odd is that the article does not include one of the most obvious way to deal with these issues: post a response from the person who feels wronged, to give their side. When people complain about old posts on Techdirt, assuming they're factually accurate, we simply suggest that people put up a comment on the post explaining their side of the story. Of course, this response is quite similar to the new Google News comment feature that so many journalists seem up in arms about -- fearing that it will simply be used for spin, PR and distortion. What they forget is that if such comments are clearly marked as coming from the biased party, people can take that into account, and it provides the additional info necessary for people to make a more informed decision. The NY Times piece also leaves out a second option: that the person can get themselves in the news again, and have the old stories disappear into the dark caverns of Google's later page search results. In fact, that technique may be working for Allen Kraus, one of the guys used as an example in the NY Times piece. Thanks to this new NY Times piece, many of the links on Google appearing under his name are already about this particular story, rather than the old one he's upset about.

Filed Under: newspapers, old news, permanent record
Companies: new york times