Wall Street Journal Scores Very Limited Win In Fight With DOJ Over Sealed Surveillance Documents

from the here's-a-modicum-of-government-accountability,-will-that-do? dept

The Wall Street Journal has obtained a nominal "win" in a Stingray-related legal action aimed at unsealing electronic surveillance orders, but the decision reads more like a loss. Jennifer Valentino-Devries reports:

In the order, made after a series of legal motions brought by the Journal’s publisher, Dow Jones & Co., U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas found that Dow Jones has a legal right to see government applications for surveillance, an idea the U.S. Justice Department had fought. But she agreed with the Justice Department that the requested documents shouldn't be disclosed yet because the 14 applications, dating from 2010 to 2013, all relate to continuing cases.

Yes, the WSJ has a right to see these files… but not until the DOJ decides these investigations are really and truly over -- a determination that has yet to be reached for files zooming past the half-decade mark.

The oral arguments delivered in June provide a little more insight into the DOJ's thought processes -- mainly that it should be the sole arbiter of document releases. The DOJ went past the constraints of its earlier argument -- that "open" investigations are not subject to "common law access" -- by claiming that documents used in the course of investigations, even closed ones, are not public records.

I think our position is that "ongoing" is perhaps the wrong word choice in order to determine where the common law right of access and the First Amendment right of access applies. What we would say is that there is significant authority for the government's argument that pre-indictment investigations and the warrants and the applications and the orders that are contained in the context of pre-indictment investigations are not subject to the common law right of access.

Dow Jones had asked the government to provide periodic status updates on these supposedly "open" investigations. The DOJ ignored these requests until prompted by the court, at which point it declared the files to be beyond the reach of the public. Here's the judge's recap of the events:

Dow Jones then filed earlier this year the motion for an updated status report requesting various things: the government to update the report regarding the status of the investigations, and then making public certain versions of the status report, and the sealed appendix. I believe then the government responded as I said, basically saying no updating is necessary here because there is no common presumption of access or First Amendment right.

The court didn't necessarily agree with this assertion but it did find the "balancing test" favored the government's interests. Dow Jones' legal counsel has asked for some additional transparency in docket filings, which would both provide the public with more information as well as assist the WSJ in determining the accuracy of the DOJ's assertions. (It could potentially aid in sussing out the form of surveillance being used as well.)

I would just make the one small addition that, you know, a lot of these applications have a bunch of different requests kind of all pulled together. We've got pen register, trap and trace, we've got D orders, we've got subpoenas, we've got statutory search warrants. And so I would think that an entry ought to reflect that, particularly as it relates to ongoing access issues.

You know, one -- some of these cases in which we've sought access are called In Re Sealed Application, some are called In Re Pen Register. The last one -- the most recent one is In Re Search Warrant. Well, if it's In Re Search Warrant, then the government's argument that these aren't search warrants looks a lot different. And so I think that the more specificity with regard to the basis of the application would help guide the Court as well as anyone who is seeking access to these to try and determine exactly what types of access might apply.

The DOJ, unsurprisingly, isn't a fan of this idea. The surprising part is that -- in arguing against Dow Jones' proposal -- it basically admitted it deploys multiple investigative tools and techniques using a single, apparently non-specific judicial authorization.

[F]or efficiency purposes, we've tended to bring a lot of these actions under one single document so that we don't have to keep coming back to the judge to get separate authorizations for different types of investigatory techniques in the same investigation, so we've just found it expedient to do that at one time.

There are your parallel construction and your Stingrays d/b/a pen registers, etc. And this slips by the court unquestioned.

As it stands now, the DOJ owes the Wall Street Journal a status update in two weeks… and that's about it. The paper may have won the right to unseal these documents, but apparently any future transparency will be left to the discretion of the government.

Filed Under: doj, foia, secrecy, stingray, surveillance, transparency, wall street journal, wsj
Companies: wall street journal

Wall Street Journal Calls Snowden A Sociopath; Argues For Even Less NSA Oversight

from the the-nsa-journal dept

It's no surprise that the editorial board of the Wall Street Journal would be apologists for the surveillance state, but even they have reached new depths in discussing the recommendations to President Obama from his NSA review panel/task force. As we had already pointed out, the actual recommended changes appear to be entirely cosmetic, and yet the WSJ seems to think that the NSA should have free rein to spy on anyone and everything. It's as if the WSJ editorial board has never heard of the 4th Amendment, and has simply no clue how much damage the NSA has done to the US economy. You would think, given the WSJ's reputation as being pro-big business, that it would concern them that businesses appear to be losing a ton of money overseas as people don't want to do business with American companies any more over the NSA revelations.

But, no, the editorial is so full of ignorance and wrongness that it almost feels like a parody. It refers to Ed Snowden as a "sociopath with stolen documents" for example:

The report lands at a bad political moment, with tea party Republicans and anti-antiterror Democrats smelling opportunity and sociopaths with stolen documents campaigning to harm U.S. national security.

I'm curious how they judge him to be a sociopath. Considering the ruling yesterday by Judge Leon, which the WSJ acknowledges in the very next sentence, it certainly looks like Snowden revealed to the public an unconstitutional effort by the US government to violate our privacy.

The editorial goes on to insist that any rollback of the bulk metadata program would have horrendous consequences... based on nothing. The editorial claims that a moderate change to the bulk metadata collection (requiring telcos to hold onto the data, rather than letting the NSA get it up front) would "effectively cripple" the NSA's ability to analyze these records.

The problem is that metadata is only useful if it is pooled, formatted and organized so it can be searched quickly and accurately. Intelligence is not an on-demand technology but an ongoing, painstaking process in preparation for questions that no one can know until U.S. spooks need immediate answers.

But that's both wrong and bullshit at the same time. First, that paragraph could be used to argue against any limit on surveillance. It goes completely against the very concept of the 4th Amendment. Hell, attaching recording devices and cameras to every single human being, and piping that info directly into the NSA (and no, we're not quite at that stage yet) would also help the NSA search for info quickly -- but it's also insane. Why would the WSJ support an insane concept?

More importantly, despite having many opportunities to do so, the NSA has yet to show any evidence that the bulk metadata collection was necessary to stop any terror attacks. Multiple Senators have already said that there is no such evidence, and in Judge Leon's ruling he explicitly notes that, despite the opportunity to do so, the US government did not present a single shred of evidence that this program has been necessary. Furthermore, the claims that it's necessary to have the data in hand (as opposed to held by the telcos, as this proposal would allow) is again not supported by the actual evidence. Judge Leon clearly pointed out that in the examples given of where the metadata was used, there was no necessary "urgency" that would have prevented reviewing that information were it held elsewhere.

The editorial board also apparently has a serious problem with the idea that there should be an adversarial process within the FISA court. In fact, it goes even further in arguing that the FISA court itself is a problem, and that the NSA shouldn't even be accountable to the judicial branch, but to the executive branch alone. And then it mocks the idea of an adversarial process by calling it a "roving ACLU corps", because protecting civil liberties is apparently not a good thing according to the WSJ.

The FISC judges are not now operating as a judiciary but instead fill a quasi-legal management role over NSA. This dilutes accountability for the political branches, but the Obama panel wants to go further and appoint a public advocate whose job is to argue against the NSA as in a public lawsuit.

This roving ACLU corps would second-guess the agency and presumably urge the judges to reject or limit NSA requests.

Even by the ridiculously low standards of the WSJ, this editorial is simply ludicrous. It bows down before the surveillance state, wishing for even fewer protections for our civil liberties, and pretends that if only the government could spy on us even more, the world would be a much better place. And it throws in that gratuitous attack on Snowden's mental faculties just as a bonus. Because, when defending the surveillance state, apparently if you can't argue with logic, ad hominems are the way to go.

Filed Under: bulk metadata collection, ed snowden, editorial board, nsa, surveillance, wall street journal

UK Continues To Censor The Press: Orders Wall Street Journal To Pull Details From Already Published Story

from the no-freedom-of-the-press dept

The UK's issue broad injunctions that try to silence the press from naming names of people accused of crimes. Given that, a court apparently ordered the Wall Street Journal to remove the names of bankers the WSJ had noted were expected to be named as being involved in the criminal manipulation of the LIBOR rate:

A British judge ordered the Journal and David Enrich, the newspaper's European banking editor, to comply with a request by the U.K.'s Serious Fraud Office prohibiting the newspaper from publishing names of individuals not yet made public in the government's ongoing investigation into alleged manipulation of the London interbank offered rate, or Libor.

The order, which applies to publication in England and Wales, also demanded that the Journal remove "any existing Internet publication" divulging the details. It threatened Mr. Enrich and "any third party" with penalties including a fine, imprisonment and asset seizure.

Except, as the Journal notes, it had already published the story out on the wire, and while it took down its own web story, and is protesting the injunction, it's not at all difficult to find other stories that published the names:

In Friday’s U.S. edition of the newspaper, 11 names were printed, including former UBS AG (NYSE:UBS) and Citigroup Inc. (NYSE:C) trader Tom Hayes; his former boss at UBS, Michael Pieri; and two former brokers at R.P. Martin Holdings Ltd., Terry Farr and James Gilmour.

And, of course, anyone who got the print version, which had already gone to press, could see the names as well: And, in the end, all this has really done is draw that much more attention to the names.

Filed Under: censorship, freedom of the press, injunctions, libor, press, super injunctions, uk, wall street journal
Companies: dow jones

WSJ's Defense Of News Of The World: Hey, It's Not Like They Published Wikileaks Secrets

from the uh-what? dept

Lots of folks are pointing out the ridiculousness of a new editorial in the WSJ defending News Corp. (the owner of the WSJ) in the ongoing hacking debacle. Basically, it defends everything about News Corp. and its actions with a tiny nod to the fact that phone hacking is illegal at the beginning and at the end of the piece, but, even then, it tries to pin the blame on UK law enforcement rather than News Corps.' own actions:

Phone-hacking is illegal, and it is up to British authorities to enforce their laws. If Scotland Yard failed to do so adequately when the hacking was first uncovered several years ago, then that is more troubling than the hacking itself.

Uh, yeah. What struck me as even more ridiculous was the editorial's attempt to mock other publications for talking about this by noting that some of those publications (they're mainly talking about The Guardian, who has been the main force driving the phone hacking story for the past few years) worked with Julian Assange and Wikileaks:

The Schadenfreude is so thick you can't cut it with a chainsaw. Especially redolent are lectures about journalistic standards from publications that give Julian Assange and WikiLeaks their moral imprimatur.

Let's see. One involves getting whistleblowers to expose corporate and government malfeasance... and one involved hacking into the phone of a dead girl and erasing messages, throwing off the investigation and giving her family hope. Sure, I can see how there's a moral equivalence there...

Does the editorial board at the WSJ really believe that the public is so stupid as to think that the two things are even remotely equivalent? And if so, why is it that the WSJ set up its own Wikileaks-competitor, with much weaker security and promises to protect identities?

It's a sad day when the Wall Street Journal admits it can't tell the difference between whistleblowing and reporters hacking into personal voicemails and then paying off police and others about it.

Filed Under: news of the world, phone hacking, rupert murdoch, wall street journal
Companies: news corp.

Dow Jones Sues Texas; Says Taxing The Wall Street Journal Is A First Amendment Violation

from the tax-the-ink dept

Apparently Texas has a bizarre tax law, in which newspapers don't have to pay sales tax, but where newspapers are very specifically defined as "being printed on newsprint, distributed in short intervals, disseminating the news, with an average sale price that doesn't exceed $1.50." Having that price point in there seems like a really strange static number. Of course, due to inflation, the Wall Street Journal and the NY Times have both increased their cover price such that they're over an average of $1.50, and the state government, so desperate for tax money, declared that both newspapers are no longer newspapers, and must now pay sales tax. Dow Jones paid the tax, but is now suing the state, claiming that the tax code represents a First Amendment violation.

While this may sound silly, there is a pretty strong basis for the lawsuit. There have been a few Supreme Court cases that cover similar grounds, including Minneapolis Star v. Minnesota Comm'r which found that a tax on ink for newspapers was prior restraint and a violation of the First Amendment and Grosjean v. American Press Co., Inc., where the Court found that a tax on newspapers that had a circulation of 20,000 was similarly a restraint on the First Amendment. It seems like the Texas tax is pretty similar to both of those situations...

Filed Under: free speech, newspapers, prior restraint, texas, wall street journal
Companies: dow jones

Appropriation Artist Makes Paintings Out Of WSJ Stipple Images... Pisses Off Stipple Artist

from the brewing-legal-battle? dept

If you're sitting around waiting for the Shepard Fairey lawsuit to move forward, here's another brewing situation to follow. As you probably know, the Wall Street Journal is famous for its "stipple" illustrations of various newsmakers -- in fact, some people consider it to be quite an accomplishment in life to be memorialized in a WSJ stipple image. Appropriation artist Jose Maria Cano obviously recognizes this and has created a series of paintings called the Wall Street 100 -- made up of large painted versions of the WSJ's stipple images. There's no effort, whatsoever, to disguise this. In fact, the painting even include snippets of text around the images: The fact that the collection of images is called the Wall Street 100 might be another tipoff. And yet... the WSJ stipple artist who created the original Obama stipple that was used for the image above is pretty upset about all of this, and says that the Wall Street Journal legal team "is on top of this case." If this actually turns into a lawsuit, there's probably a much stronger copyright claim here than in the Shepard Fairey case, but again, I'm left wondering what good this would do. The complaint from the original artist, Noli Novak, isn't about money (she doesn't even own the rights to the images), but about Cano getting credit for her artwork -- even though it's pretty clear that Cano's work was simply making paintings out of the WSJ images. Cano seems to be doing standard appropriation art, taking something from elsewhere and turning it into "artwork." While you can understand why Novak might be offended, it's difficult to see what sort of "loss" there is here that's worth being concerned about. Why not just be happy that someone decided the little stipple drawings were worthy of being ripped from the newsprint and turned into serious art?

Filed Under: appropriation art, jose maria cano, noli novak, shepard fairey, stipple art, wall street journal
Companies: news corp.

WSJ To Try Micropayments: What A Bad Idea

from the watch-this-fail dept

There are all sorts of bad ideas around trying to get people to pay for news, but perhaps the worst is the idea of micropayments. Micropayments are trotted out every other year or so as the "savior" to paid content by people with little understanding of economics. The problem is that micropayments never work in a competitive market. First, the "cost" is much bigger than the nominal sum, because of the mental transaction costs ("is this worth buying?") that add friction to the process. Second, and more importantly, it's a self-defeating move. In adding micropayments, you automatically decrease the value of the content. This may sound paradoxical, but what matter is why and how people value content. These days, many people value content for the ability to engage with it, comment on it and share it with others. Micropayments take away that ability, and thus decrease the value of the content. In some sense, adding a micropayment option gives people fewer reasons to pay! Micropayments have been tried over the years, and every time someone announces them the press goes all nuts about how they're the business model of the future for content. And then the projects go nowhere for a few years, whither and die. And the press never seems to notice.

So, it should probably come as little surprise that it's the press itself that's going to try such a plan. The Wall Street Journals' managing editor, Robert Thomson says that the WSJ is going to start offering a micropayment offering for individual articles. Of course, it sounds like it's not always micropyaments either:

"It's a payments system -- once we have your details we will be able to charge you according to what you read, in particular, a high price for specialist material."

A "high price," by definition, isn't a micropayment of course. And it's just as likely to fail miserably. Putting a paywall in the way of people, and they'll find the content elsewhere. Put a paywall in front of good content, and it just opens up the opportunity for other, smarter, publications, to provide the news for free and run away with all the advertising money.

Filed Under: micropayments, robert thomson, wall street journal
Companies: news corp.

Singapore Fines The WSJ For Editorials It Considered Contempt Of Court

from the opinions-not-allowed dept

The Wall Street Journal is running a story about how it's been fined by Singaporean courts for two editorials the paper published over the summer. The story notes how nearly every foreign publication distributed in Singapore has been sued in court at one point or another, and the article goes through detailing the specific charges against it by Singapore. Obviously, the WSJ's story can be seen as biased since they were a party in the lawsuit, but from the description, it sounds like Singapore was upset that the WSJ accurately reported on a defamation lawsuit by a former government official against an opposition party candidate, and later a critical study by the International Bar Association on the rule of law in Singapore. It's difficult to see how those reports can be said to be "contemptuous of the judiciary," but in a country that isn't known for taking criticism well, perhaps it's not that surprising.

Still, what's most interesting is that in response to this, the Wall Street Journal has chosen not to publish this particular story about the decision in the Asian edition of the Wall Street Journal -- though, the story is obviously available online. Apparently the WSJ recognizes, probably accurately, that if they published the story about the decision, where they are somewhat critical of that decision, they would probably be in for yet another "contempt" charge. To some extent, this decision makes you wonder how effective suppression of the press can be going forward. Yes, countries can build filters and block out certain publications, but online content can always be filtered through eventually. The very fact that the WSJ is purposely leaving the editorial out of Asian editions of the paper seems more likely to draw more attention to the story from within Singapore as well, accomplishing exactly the opposite of what the country thinks it's doing in fining the paper.

Filed Under: contempt of court, freedom of the press, singapore, wall street journal
Companies: dow jones, news corp.

Dow Jones Execs Talk Murdoch Out Of Dropping The Paywall

from the short-term-revenue-vs.-long-term-relevance dept

For months there had been a lot of buzz about how Rupert Murdoch was interested in dropping the WSJ's paywall. However, as we noted, execs at Dow Jones were quick to hit back, and said they would convince Murdoch otherwise after the acquisition was completed. It appears that's exactly what's happened. Murdoch today admitted that he's going to keep the WSJ subscription offering and maybe even increase the price. Amusingly, this news is available for free on the WSJ's site. The truth is, it's still not entirely clear what's going to happen to the Journal's website. While Murdoch said there will always be a subscription offering, he also said that more content will be free. It sounds like he's trying to straddle both solutions here, picking the "most valuable" content to remain locked up. Of course, that was the NY Times' strategy -- which failed.

The simple fact is that news reporting content is incredibly difficult to monetize directly anymore -- due to a variety of factors, mostly having to do with the nature of trying to sell content. There are models (even subscription models) that work, but they will be not for the content directly, but for advanced services, such as personalization or analysis. The risk in locking up your best content is that the WSJ will continue to lose relevance, as the next generation of readers won't even bother to sign up, as they won't be able to understand why it's worth paying for this content, no matter how good WSJ execs claim it is.

The next generation of content users have learned something important: it's no longer reasonable to take it on faith that content they don't have access to is good and worth paying for. They need to have access to the content itself, and will figure out for themselves if it's valuable -- and if it is, they'll want to do more with it than just read it. They want to share it, vote on it, discuss it, analyze it and many other things. Locking up the content makes it a lot more difficult and takes away much of the value. Taking away value from consumers isn't exactly a strategy for success these days.

Filed Under: business models, free, newspapers, rupert murdoch, wall street journal
Companies: dow jones, news corp