The Splinters Of Our Discontent: A Review Of Network Propaganda

from the epistemic-closure dept

Years before most of us thought Donald Trump would have a shot at the presidency, the Cato Institute's Julian Sanchez put a name on a problem he saw in American conservative intellectual culture. Sanchez called it "epistemic closure," and he framed the problem this way:

"One of the more striking features of the contemporary conservative movement is the extent to which it has been moving toward epistemic closure. Reality is defined by a multimedia array of interconnected and cross promoting conservative blogs, radio programs, magazines, and of course, Fox News. Whatever conflicts with that reality can be dismissed out of hand because it comes from the liberal media, and is therefore ipso facto not to be trusted. (How do you know they're liberal? Well, they disagree with the conservative media!)  This epistemic closure can be a source of solidarity and energy, but it also renders the conservative media ecosystem fragile."

Sanchez's comments didn't trigger any kind of real schism in conservative or libertarian circles. Sure, there was some heated debate among conservatives, and a few conservative commentators, like David Frum, Bruce Bartlett, and the National Review's Jim Manzi, acknowledged that there might be some merit to Sanchez's critique. But for most people, this argument among conservatives about epistemic closure hardly counted as serious news.

But the publication last fall of Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics by Yochai Benkler, Robert Faris, and Hal Roberts—more than eight years after the original "epistemic closure" debate erupted—ought to make the issue hot again. This long, complex, yet readable study of the American media ecosystem in the run-up to the 2016 election (as well as the year afterwards) demonstrates that the epistemic-closure problem has generated what the authors call an "epistemic crisis" for Americans in general. The book also shows that our efforts to understand current political division and disruptions simplistically—either in terms of negligent and arrogant platforms like Facebook, or in terms of Bond-villain malefactors like Cambridge Analytica or Russia's Internet Research Agency—are missing the forest for the trees. It's not that the social media platforms are wholly innocent, and it's not that the would-be warpers of voter behavior did nothing wrong (or had no effect). But the seeds of the unexpected outcomes in the 2016 U.S. elections, Network Propaganda argues, were planted decades earlier, with the rise of a right-wing media ecosystem that valued loyalty and confirmation of conservative (or "conservative") values and narratives over truth.

Now, if you're a conservative, you may be reading this broad characterization of Network Propaganda as an attack on conservatism itself. Here are four reasons you shouldn't fall into that trap! First, nothing in this book challenges what might be called core conservative values (at least as they have been understood for most of the last 100 years or so). Those values typically have included favoring limited government over expansive government, preferring economic growth and rights to property over promoting equity and equality for their own sake, supporting business flexibility over labor and governmental demands, committing to certain approaches to tax policy, and so forth. Nothing in Network Propaganda is a criticism of substantive conservative values like these, or even of what may increasingly be taken as "conservative" stances in the Trump era (nationalism or protectionism or opposition to immigration, say). The book doesn't take a position on traditional liberal or progressive political stances either.

Second, nothing in the book discounts the indisputable fact that individuals and media entities on the left, and even in the center, have their own sins and excesses to account for. In fact, the more damning media criticisms in the book are aimed squarely at the more traditional journalistic institutions that made themselves more vulnerable to disinformation and distorted narratives in the name of "objectivity." Where right-wing media set out to reinforce conservative identity and narratives—doing, in fact, what they more or less always promised they were going to do—the institutional press of the left and the center frequently let their superficial commitment to objectivity result in the amplification of disinformation and distortions.

Third, there are philosophical currents on the left as well as the right that call the whole notion of objective facts and truth into question—that consider all questions of fact to represent political judgments rather than anything that might be called "factual" or "truthful." As the authors put it, reform of our media ecosystems "will have to overcome not only right-wing propaganda, but also decades of left-wing criticism of objectivity and truth-seeking institutions." Dedication to truth-seeking is, or ought to be, a transpartisan value.

Which leads us to the fourth reason conservatives should pay attention to Network Propaganda, which is the biggest one. The progress of knowledge, and of problem-solving in the real world, requires us, regardless of political preferences and philosophical approaches, to come together in recognizing the value of facts. Consider: if progressives had cocooned themselves in a media ecosystem that had cut itself from the facts—that valued tribal loyalty and shared identity over mere factual accuracy—conservatives and centrists would be justified in pointing out not merely that the left's media were unmoored but also that its insistence on doctrinal purity in the face of factual disproof was positively destructive.

But the massive dataset and analyses offered by Benkler, Faris, and Roberts in Network Propaganda demonstrate persuasively that the converse distortion has happened. Specifically, the authors took about four million online stories regarding the 2016 election or national politics generally and analyzed them through Media Cloud, a joint technological project developed by Harvard's Berkman Klein Center and MIT's Center for Civil Media over the course of the last decade. Media Cloud enabled the authors to study not only where the stories originate but also how they were linked and propagated, and how the various entities in our larger media ecosystem link to one another. The Media Cloud analytical system made it possible to study news sites, including the website versions of newspapers like the New York Times and the Wall Street Journal, along with the more politically focused websites on the left and right, like Daily Kos and Breitbart. The system also enabled the authors to study how the stories were retweeted and shared on Facebook, Twitter, and other social media, as well as how, in particular instances, television coverage supplemented or amplified online stories.

You might expect that any study of such a large dataset would show symmetrical patterns of polarization during the pre-election to post-election period the authors studied (basically, 2015 through 2017). It was, after all, an election period, which is typically a time of increased partisanship. You might also expect, given the increasing presence of social-media platforms like Facebook, Twitter, and Instagram in American public life, that the new platforms themselves, just by their very existence and popularity, shaped public opinion in new ways. And you might expect, given the now-indisputable fact that Russian "active measures" were trying to influence the American electorate in certain ways, to see clear proof either that the Russians succeeded in their disinformation/propaganda efforts (or that they failed).

Yet Network Propaganda, instantly a necessary text for those of us who study media ecologies, shows that the data point to different conclusions. The authors' Media Cloud analyses (frequently represented visually in colorful graphs as well as verbally in tables and in the text of the book itself) point to different conclusions altogether. As Benkler characterizes the team's findings in the Boston Review:

"The data was not what we expected. There were periods during the research when we were just working on identifying—as opposed to assessing—the impact of Russians, and during those times, I thought it might really have been the Russians. But as we analyzed these millions of stories, looking both at producers and consumers, a pattern repeated again and again that had more to do with the traditional media than the Internet."

That traditional media institutions are seriously culpable for the spread of disinformation is counterintuitive. The authors begin Network Propaganda by observing what most of us also observed—the rise of what briefly was called "fake news" before that term was transmuted by President Trump into shorthand for his critics. But Benkler at al. also note that that the latter half of the 20th century, mainstream journalistic institutions, informed by a wave of professionalization that dates back approximately to the founding of the Columbia University journalism school, historically had been able to overcome most of the fact-free calumnies and conspiracy theories through their commitment to objectivity and fact-checking. Yet mainstream journalism failed the culture in 2016, and it's important for the journals and the journalists to come to terms with why. But doing so means investigating how stories from the fringes interacted with the mainstream.

The fringe stories had weird staying power; in the period centering on the 2016 election, a lot of the stories that were just plain crazy—from the absurd narrative that was "Pizzagate" to claims that Jeb Bush had "close Nazi ties" (Alex Jones played a role in both of these narratives)--persistently resurfaced in the way citizens talked about the election. To the Network Propaganda authors, it became clear that in recent years something new has emerged—namely, a variety of disinformation that seems, weedlike, to survive the most assiduous fact-checkers and persist in resurfacing in the public mind.

How did this emergence happen, and should we blame the internet? Certainly this phenomenon didn't manifest in any way predicted by either the more optimistic pundits at the internet's beginnings or the backlash pessimists who followed. The optimists had believed that increased democratic access to mass media might give rise to a wave of citizen journalists who supplemented and ultimately complemented institutional journalism, leading both to more accuracy in reporting and more citizen engagement. The pessimists predicted "information cocoons" (Cass Sunstein's term) and "filter bubbles" (Eli Pariser's term) punctuated to some extent by quarrelsomeness because online media can act as disinhibition to bad behavior.

Yes, to some extent, the optimists and the pessimists both found confirmation of their predictions, but what they didn't expect, and what few if any seem to have predicted, was the marked asymmetry of how the predictions played in the 2015-2017 period with regard to the 2016 election processes and their outcome. As the authors put it, "[t]he consistent pattern that emerges from our data is that, both during the highly divisive election campaign and even more so during the first year of the Trump presidency, there is no left-right division, but rather a division between the right and the rest of the media ecosystem. The right wing of the media ecosystem behaves precisely as the echo-chamber models predict—exhibiting high insularity, susceptibility to information cascades, rumor and conspiracy theory, and drift toward more extreme versions of itself. The rest of the media ecosystem, however, operates as an interconnected network anchored by organizations, both for profit and nonprofit, that adhere to professional journalistic norms."

As a result, this period saw the appearance of disinformation narratives that targeted Trump and his primary opponents as well as Hillary Clinton, but the narratives that got more play, not just in right-wing outlets but ultimately in the traditional journalistic outlets at well, were the ones that centered on Clinton. This happened even when there were fewer available facts supporting the anti-Clinton narratives and (occasionally) more facts supporting the anti-Trump narratives. The explanation for the anti-Clinton narratives' longevity in the news cycle, the data show, is the focus of the right-wing media ecology on the two focal media nodes of Fox News and Breitbart. At times during this period, Breitbart took the lead as an influencer from Fox News, which eventually responded by repositioning itself after Trump's nomination as a solid Trump booster.

In contrast, left-wing media had no single outlet that defined orthodoxy for progressives. Instead, left-of-center outlets worked within the larger sphere of traditional media, and, because they were competing for the rest of the audience that had not committed itself to the Fox/Breitbart ecosystem, were constrained to adhere, mostly, to facts that were confirmable by traditional media institutions associated with the center-left (the New York Times and the Washington Post, say) as well as with the center-right (e.g., the Wall Street Journal). Basically, even if you were an agenda-driven left-oriented publication or online outlet, your dependence on reaching the mainstream for your audience meant that, you couldn't get away with just making stuff up, or with laundering far-left conspiracy theories from more marginal sources.

Network Propaganda's data regarding the right-wing media ecosystem—that it's insular, prefers confirmation of identity and loyalty rather than self-correction, demonizes perceived opponents, and resists disconfirmation of its favored narratives—map well to social-science political-communication theorists Kathleen Hall Jamieson and Joseph Capella's 2008 book, Echo Chamber: Rush Limbaugh And The Rise Of Conservative Media. In that book, Jamieson and Capella outlined how, as they put it, "these conservative media create a self-protective enclave hospitable to conservative beliefs." As a consequence, they write:

"[t]his safe haven reinforces conservative values and dispositions, holds Republican candidates and leaders accountable to conservative ideals, tightens their audience's ties to the Republican Party, and distances listeners, readers, and viewers from 'liberals," in general, and Democrats, in particular. It also enwraps them in a world in which facts supportive of Democratic claims are contested and those consistent with conservative ones championed."

The data analyzed by Benkler et al. in Network Propaganda support Jamieson's and Capella's conclusions from more than a decade ago. Moreover, Benkler et al. argue that the key factors in the promotion of disinformation were not "clickbait fabricators" (who generate eye-grabbing headlines to generate revenue), or Russian "active measures," or the corrosive effects of the (relatively) new social-media platforms Facebook and Twitter. The authors are aware that in making this argument they're swimming against the tide:

"Fake news entrepreneurs, Russians, the Facebook algorithm, and online echo chambers provide normatively unproblematic, nonpartisan explanations to the current epistemic crisis. For all of these actors, the strong emphasis on technology suggests a novel challenge that our normal systems do not know how to handle but that can be addressed in a nonpartisan manner. Moreover, focusing on 'fake news' from foreign sources and on Russian efforts to intervene places the blame onto foreigners with no legitimate stake in our democracy. Both liberal political theory and professional journalism consistently seek neutral justifications for democratic institutions, so visibly nonpartisan explanations such as these have enormous attraction."

Nevertheless, Network Propaganda argues, the nonpartisan explanations are inconsistent with what the data show, which the authors characterize as "a radicalization of roughly a third of the American media system." (It isn't "polarization," since the data don't show any symmetry between left and right "poles.") The authors argue that "[n]o fact emerges more clearly from our analysis of how four million political stories were linked, tweeted, and shared over a three-year period than that there is no symmetry in the architecture and dynamics of communications within the right-wing media ecosystem and outside of it." In addition, they write, "we have observed repeated public humiliation and vicious disinformation campaigns mounted by the leading sites in this sphere against individuals who were the core pillars of Republican identity a mere decade earlier." Those campaigns against Republican stalwarts came from the radicalized right-wing media sources, not from the left.

The authors acknowledge that they "do not expect our findings to persuade anyone who is already committed to the right-wing media ecosystem. [The data] could be interpreted differently. They could be viewed as a media system overwhelmed by liberal bias and opposed only by a tightly-clustered set of right-wing sites courageously telling the truth in the teeth of what Sean Hannity calls the 'corrupt, lying media,' rather than our interpretation of a radicalized right set apart form a media system anchored in century-old norms of professional journalism." But that interpretation of the data flies in the face of Network Propaganda's extensive demonstration that the traditional mainstream media—in what the authors call "the performance of objectivity"—actually had the effect of amplifying right-wing narratives rather than successfully challenging the false or distorted narratives. (The authors explore this paradox in Chapter 6.)

Democrats and progressives won't have any trouble accepting the idea that radicalized right-wing media are the primary cause of what the authors call today's "epistemic crisis." But Benkler and his co-authors want Republicans to recognize what they lost in 2016:

"The critical thing to understand as you read this book is that the epochal change reflected by the 2016 election and the first year of the Trump presidency was not that Republicans beat Democrats [but instead] that in 2016 the party of Ronald Reagan and the two presidents Bush was defeated by the party of Donald Trump, Breitbart, and billionaire Robert Mercer. As our data show, in 2017 Fox News joined the victors in launching sustained attacks on core pillars of the Party of Reagan—free trade and a relatively open immigration policy, and, most directly, the national security establishment and law enforcement when these threatened President Trump himself."

It's possible that many or even most Republicans don't yet want to hear this message—the recent shuttering of The Weekly Standard underscores one of the consequences of radicalization of right-wing media, which is that center-right outlets, more integrated with the mainstream media in terms of journalistic professionalism and factuality, have lost influence in the right-wing media sphere. (It remains to be seen whether The Bulwark helps fill the gap.)

But the larger message from Network Propaganda's analyses is that we're fooling ourselves if we blame our current culture's vulnerability to disinformation on the internet in general or on social media (or search engines, or smartphones) … or even on Russian propaganda campaigns. Blaming the Russians is trendy these days, and even Kathleen Jameson, whose 2008 book on right-wing media, Echo Chamber, informs the authors' work in Network Propaganda, has adopted the thesis that the Russians probably made the difference for Trump in 2016. Her recent book Cyberwar—published a month after Network Propaganda was published—spells out a theory of Russian influence in the 2016 election that also, predictably, raises concerns about social media, as well as focusing on the role of the Wikileaks releases of hacked DNC emails and how the mainstream media responded to those releases.

Popular accounts of Jamieson's book have interpreted Cyberwar as proof that the Russians are the central culprits in any American 2016 electoral dysfunction, even though Jamieson carefully qualifies her reasoning and conclusions in all the ways you would want a responsible social scientist to do. (She doesn't claim to have proved her thesis conclusively.) Taken together with the trend of seeing social media as inherently socially corrosive, the Russians-did-it narrative suggests that if Twitter and Facebook (and Facebook-integrated platforms like Instagram and WhatsApp) clean up their acts and find ways to purge their products of foreign actors as well as homegrown misleading advertising and "fake news," the political divisiveness we've seen in recent years will subside. But Network Propaganda provides strong reason to believe that reforming or regulating or censoring the internet companies won't solve the problems they're being blamed for. True, the book expressly endorses public-policy responses to the disinformation campaigns of malicious foreign actors as well as reforms of how the platforms handle political advertising. But, the authors insist, the problem isn't primarily the Russians, or technology—it's in our political and media cultures.

Possibly Jamieson is right to think that the Russians' "active measures" were efforts that, amplifying pre-existing political divisions through social media, were the final straw that ultimately changed the outcome of the 2016 election. Nevertheless, at its best Jamieson's book has taken a snapshot of how vulnerable our political culture was in 2016. Plus, her theory of Russian influence requires some suspension of disbelief, notably in her theory about how then-FBI-director James Comey's interventions—departures from DOJ/FBI norms—were caused somehow by the fact of the Russian campaign. Even if you accept her account, it's an account of our vulnerability that doesn't explain where the vulnerability came from.

In contrast, Network Propaganda has a fully developed theory of where that vulnerability came from, and traces it—in ways aligned with Jamieson's previous scholarship—to sources that predate the modern internet and social media. In addition, in what may be a surprise given the book's focus on what might be mistakenly taken as a problem unique to American political culture, Network Propaganda expressly places the American problems in the context of the larger currents around the world to blame internet platforms in particular for social ills:

"For those not focused purely on the American public sphere, our study suggests that we should focus on the structural, not the novel; on the long-term dynamic between institutions, culture, and technology, not only the disruptive technological moment; and on the interaction between the different media and technologies that make up a society's media ecosystem, not on a single medium, like the internet, much less a single platform like Facebook or Twitter. The stark differences we observe between the insular right-wing media ecosystem and the majority of the American media environment, and the ways in which open web publications, social media, television, and radio all interacted to produce these differences, suggest that the narrower focus will lead to systematically erroneous predictions and diagnoses. It is critical not to confound what is easy to measure (Twitter) with what is significantly effective in shaping beliefs and politically actionable knowledge in society.... Different countries, with different histories, institutional structures, and cultural practices of collective sense-making need not fear the internet's effects. There is no echo chamber or filter-bubble effect that will inexorably take a society with a well-functioning public sphere and turn it into a shambles simply because the internet comes to town."

Benkler, Faris, and Roberts expressly acknowledge, however, that it's appropriate for governments and companies to consider how they regulate political advertising and targeted messaging going forward—even if this online content can't be shown to have played a significant corrosive role in past elections, there's no guarantee that refined versions won't be more effective in the future. But even more important, they insist, is the need to address larger institutional issues affecting our public sphere. The book's Chapter 13 addresses a full range of possible reforms. These include "reconstructing center-right media" (to address what the authors think Julian Sanchez correctly characterized as an "epistemic closure" problem) as well as insisting that professional journalists recognize that they're operating in a propaganda-rich media culture, which ethically requires them to do something more than "performance of objectivity."

The recommendations also include promoting what they call a "public health approach to the media ecosystem," which essentially means obligating the tech companies and platforms to disclose "under appropriate legal constraints [such as protecting individual privacy]" the kind of data we need to assess media patterns, dysfunctions, and outcomes. They write, correctly, that we "can no more trust Facebook to be the sole source of information about the effects of its platform on our media ecosystem than we could trust a pharmaceutical company to be the sole source of research on the outcome of its drugs, or an oil company to be the sole source of measurements of particles emissions or CO2 in the atmosphere."

The fact is that the problems in our political and media culture can't be delegated to Facebook or Twitter to solve on their own. Any comprehensive, holistic solutions to our epistemic crises require not only transparency and accountability but also fully engaged democracy with full access to the data. Yes, that means you and me. It's time for our epistemic opening.

Mike Godwin (@sfmnemonic) is a distinguished senior fellow at R Street Institute.

Filed Under: elections, epistemic closure, filter bubbles, internet, network propaganda, news, news media, politics, yochai benkler

Techdirt Reading List: The Wealth Of Networks: How Social Production Transforms Markets And Freedom

from the still-relevant dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

While it was originally published almost exactly a decade ago, I still find myself regularly referring to Yochai Benkler's excellent The Wealth of Networks: How Social Production Transforms Markets and Freedom. This book was, and remains, the sort of bible for understanding not just the power of the internet to create all sorts of wonderful new connections, freedoms and innovations -- but also the many threats to the internet as well. It's optimistic about the potential, but recognizes that such potential is not necessarily inevitable (perhaps in contrast to our reading list book from two weeks ago, Kevin Kelly's new book, The Inevitable).

It is a fairly dense book, packed with a ridiculous amount of thought provoking ideas, concepts and revelations that have shaped the way I think about the internet. In revisiting the book, I frequently come across passages that I forget about, but which I recognize deeply impacted the way I view certain aspects of the internet. The fact that it's still so relevant today, despite being about the constantly changing internet, suggests just how perceptive and forward reaching the book was when it first came out. If you somehow have missed it over the past decade, now would be a good time to fix that.

Filed Under: reading list, techdirt reading list, wealth of networks, yochai benkler

Whistleblowers Should Be Allowed A 'Public Accountability' Defense

from the great-ideas dept

We've written numerous times about how one of the major problems of the Espionage Act, which the Obama Administration has used more than twice as many times as all previous administrations combined, is terrible in part because there is no whistleblowing defense. In fact, any and all evidence of the public interest in revealing the information is inadmissible as evidence. Instead, the Act just focuses on whether or not information was released. For hopefully obvious reasons, this has tremendous (and dangerous) implications for free speech and whistleblowing (something President Obama claims to strongly support).

However, Harvard Law professor/Berkman Center guru, Yochai Benkler, has proposed creating a special Public Accountability defense for national security leakers and whistleblowers, which he outlines in a recently published paper. The proposal is well worth reading. As Benkler notes, there is evidence that the most recent round of leaks are important for democracy, because they are challenging the legitimacy of intelligence community and government policies.

If legitimacy crisis, rather than technological change, is the primary driver of the increase since 2002 of the particular class of leaks that is most important in a democracy, then the present prosecutorial deviation from a long tradition of using informal rather than criminal sanctions represents a substantial threat to democracy. In particular, it threatens public accountability for violations of human and civil rights, abuses of emergency powers, and unchecked expansion of the national security establishment itself. Seen in that light, aggressive prosecutions are merely a symptom of the self-same post-9/11 national security overreach that instigated the legitimacy crisis: they manifest the government’s need to shield its controversial actions from public scrutiny and debate.

The deep degree of secrecy and lack of accountability means that these leaks are incredibly important in actually making sure that these government efforts are, in fact, aligned with democratic values:

Secrecy insulates self-reinforcing internal organizational dynamics from external correction. In countering this tendency, not all leaks are of the same fabric. “War story”-type leaks that make an administration look good or are aimed to shape public opinion in favor of an already-adopted strategy or to manipulate support for one agency over another, trial balloons, and so forth, are legion. While these offer the public color and texture from inside the government and are valuable to the press, they do not offer a productive counterweight to internal systemic failures and errors. Some leaks, however, provide a critical mechanism for piercing the national security system’s echo-chamber, countering self-reinforcing information cascades, groupthink, and cognitive biases that necessarily pervade any closed communications system. It is this type of leak, which exposes and challenges core systemic behaviors, that has increased in this past decade, as it did in the early 1970s. These leaks are primarily driven by conscience, and demand accountability for systemic error, incompetence, or malfeasance. Their critical checking function derives from the fact that conscience is uncorrelated with well-behaved organizational processes. Like an electric fuse, accountability leaks, as we might call them, blow when the internal dynamics of the system reach the breaking point of an individual with knowledge, but without authority. They are therefore hard to predict, and function like surprise inspections that keep a system honest. By doing so, these leaks serve both democracy and security.

To deal with this, Benkler says that Congress should act and clearly create that "Public Accountability" defense.

Aggressive prosecution of national security whistleblowers and accountability leaks threatens to undermine the checking function that whistleblowing provides. To address this threat, I propose that Congress adopt a new Public Accountability Defense as a general criminal defense, on the model of the necessity defense. The defense would be available to individuals who violate a law on the reasonable belief that by doing so they will expose to public scrutiny substantial violations of law or substantial systemic error, incompetence, or malfeasance even where it falls short of formal illegality. It is most important to the leakers themselves, but would also be available to journalists and others who participate in disseminating the leaked information. It would provide a defense not only against specific criminal provisions protecting classified materials, but also against any charge brought for actions arising out of the same set of facts involved in the leak.

The full paper goes into much more details and is well worth the read. It makes it clear that this is not the only, or even the best, way to protect whistleblowers. In fact, more direct whistleblower protections could be quite valuable. But, in general, adding this public accountability defense, similar to a "necessity" defense, both makes sense and would be a useful tool for many people who have good reasons for what they're doing when it comes to leaking information.

Filed Under: chelsea manning, ed snowden, espionage act, leaks, public accountability, public accountability defense, whistleblowing, yochai benkler

NSA Defenders Reject Appeal For Clemency That Ed Snowden Never Made; But Here's Why US Should Give Him Amnesty

from the get-it-figured-out dept

So, the AP and a few other news sources this weekend wrote articles talking about how US government officials, including the White House and the heads of the two Congressional intelligence committees, Senator Dianne Feinstein and Rep. Mike Rogers had all rejected Ed Snowden's "plea for clemency." Given the players, that's not too surprising, but there's one big problem. Snowden never made a plea for clemency. So the whole thing is bogus. It appears to be based on a bunch of bad reporting, starting with the AP, who said the following:

Snowden made the plea in a letter given to a German politician and released Friday. In his one-page typed letter, he asks for clemency for charges over allegedly leaking classified information about the NSA to the news media. ""Speaking the truth is not a crime," Snowden wrote.

Okay. Of course, since that letter was released, we can read the whole thing, and if you can find where he made a plea for clemency, let me know. It's not very long. And, there's nothing in there even remotely asking for clemency. Or anything like it. It's just Snowden pointing out, accurately, that "to tell the truth is not a crime," and we need more truth telling from the government.

But, of course, Feinstein and Rogers couldn't resist some grandstanding on all of this. Feinstein's response was particularly funny because she said that Snowden could have just reported the issue directly to her committee, where they would have buried it. Remember, Feinstein and the Senate intelligence committee have been arguing pretty much all along that everything that Snowden revealed is all perfectly legal -- even as the public and many officials are outraged by what happened. Anyone who thinks that Snowden reporting it would have done anything other than hindered any future job prospects for Ed Snowden hasn't been paying attention.

That said, Yochai Benkler, has a great piece over at The Guardian arguing why the US should grant Snowden amnesty, which is slightly different from clemency (which, again, he never asked for). Amusingly, Benkler uses the example of Congress in 2008 giving telcos retroactive immunity for their actions in helping the NSA as a model for how Congress can give Snowden similar amnesty, noting (correctly) that we already have a model of this in place. As for why? Well, considering how many things even our own government is claiming Snowden has revealed that show the NSA has gone too far certainly suggest that his leaks have been useful in exposing massive government wrongdoing by some, and terrible incompetence or ignorance by others.

Snowden hasn't asked for clemency, but if the US government is smart, it should grant him amnesty, and get him involved in the process of cleaning up the mess that the NSA (not Snowden) has created.

Filed Under: amnesty, clemency, dianne feinstein, ed snowden, mike rogers, yochai benkler

Judge Refuses To Drop 'Aiding The Enemy' Charges Against Bradley Manning

from the whistleblowing-is-aiding-the-enemy dept

We noted recently that it has become official Obama administration policy that leaking governmental wrongdoing to the press is considered aiding the enemy. This is ridiculous on multiple levels, not the least of which is the suggestion that "the enemy" is the public, and that truthful information about government overreach and excess could somehow be counterproductive to the country's interests. Of course, that issue hadn't really been put to test in any sort of court until now, in the military trial of Bradley Manning. Tragically, the judge has announced that the "aiding the enemy" charge will not be dropped, despite the near total lack of evidence to support the idea that Manning knowingly released the documents to Wikileaks recognizing that it would "aid the enemy." It is still possible he could be found "not guilty" of aiding the enemy, but dismissing the overall charge would have sent a more powerful message.

Of course, the double standard you see when compared to how the military has treated its own when it comes to things like massacring innocent people is stark and disgusting:

Colonel Morris Davis, one of the key witnesses called by Manning's defence team in an attempt to have the "aiding the enemy" charge dropped, said he was "extraordinarily disappointed" by the ruling. Davis was director of the US air force's judicial system from 2007 to 2008 and said he was normally a defender of military justice.

But he said the fact that military prosecutors were pursuing Manning with such a heavy hand had forced him to think again. He pointed to the contrast between the full-blooded prosecution of the US soldier and the outcome of the court martial that flowed from the 2005 Haditha killings in Iraq.

In that incident, 24 unarmed Iraqis including women and children were killed by US marines. In the ensuing prosecutions, six of the marines involved had their cases dropped, a seventh was found not guilty and the only one to be convicted of a single count avoided any time in jail.

"When you think about these different responses, it suggests to me that the military justice system is not working," Davis said.

Notice that this wasn't being said by some civil libertarian, but the guy who had been in charge of the air force's judicial system just a few years ago. When even folks like Colonel Davis are recognizing what a farce the Manning trial is, it's pretty clear that the system is really, really broken.

The dangerous impact of this ruling cannot be overstated. As we've noted, the main "evidence" against Manning on this particular charge is the claim that Al Qaida, and bin Laden in particular, were found to have some of the Wikileaks documents. But that's not evidence of "aiding the enemy" and if it is, it means that famed reporters like Bob Woodward and his White House sources are equally at risk for having "aided the enemy," since Woodward's books have revealed much more sensitive information, and bin Laden was also found to have not only read Woodward's book, but recommended the book to others.

Meanwhile, as Harvard law profess Yochai Benkler has written (and also testified during the trial), a finding that leaking such information to the public is a form of "aiding the enemy" creates a massive threat to the concept of a free and independent press. The chilling effects are massive.

Freedom of the press is anchored in our constitution because it reflects our fundamental belief that no institution can be its own watchdog. The government is full of well-intentioned and quite powerful inspectors general and similar internal accountability mechanisms. But like all big organizations, the national security branches of government include some people who aren't purely selfless public servants. Secrecy is necessary and justified in many cases. But as hard-earned experience has shown us time and again, it can be—and often is—used to cover up failure, avarice, or actions that simply will not survive that best of disinfectants, sunlight.

That’s where whistleblowers come in. They offer a pressure valve, constrained by the personal risk whistleblowers take, and fueled by whatever moral courage they can muster. Manning's statement in court yesterday showed that, at least in his motives, he was part of that long-respected tradition. But that’s also where the Manning prosecution comes in, too. The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.

The Freedom of the Press Foundation goes deeper in explaining how merely asking basic important questions can have you accused of "aiding the enemy" under the definitions used by the court.

The implications of the government’s argument are breathtaking. To understand why, it helps to recall the experience of another soldier. In December of 2004, Defense Secretary Donald Rumsfeld held a town-hall style meeting for troops who were preparing to deploy to Iraq. Following his remarks, Rumsfeld was confronted by an Army specialist who complained about the inadequacy of the combat equipment provided by the military.

“Our vehicles are not armored,” said Specialist Thomas Wilson, an airplane mechanic with the Tennessee Army National Guard. “We’re digging pieces of rusted scrap metal and compromised ballistic glass that’s already been shot up . . . to put on our vehicles to take into combat. We do not have proper vehicles to carry with us north.”

The soldier’s question — and Rumsfeld’s now infamous response that “you go to war with the army you have, not the army you might want or wish to have” — were front-page news around the world. And while war cheerleaders like Rush Limbaugh accused Specialist Wilson of “near insubordination” for embarrassing the defense secretary in a public forum, there was no suggestion in serious quarters that he face punishment — much less prosecution — for his words.

Yet the government’s decision to prosecute Manning for “Aiding the Enemy” threatens to make public comments like Wilson’s grounds for criminal prosecution. The government does not contend that Manning gave any information to Al Qaeda, or even that he intended that Al Qaeda receive it. Rather, it claims that Manning “indirectly” aided Al Qaeda by causing intelligence information to be posted on WikiLeaks’ website, knowing that Al Qaeda has access to the internet. Specifically, the government contends that Manning violated Article 104 of the Uniform Code of Military Justice, which provides that “any person who . . . gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

They go on to note that in merely asking that question (and, in fact, Rumsfeld in answering it) "spoke openly about the vulnerability of U.S. forces in Iraq." And, under the definitions used against Manning, claiming he was "aiding the enemy" the same would apply to both Wilson and Rumsfeld as well:

Both men surely knew that the enemy would watch their exchange on television or read about it on the internet. The notion that Wilson and Rumsfeld broke the law by communicating this information to the media and thereby “indirectly” aiding the enemy is absurd — but no more so than the government’s contention that Bradley Manning did so.

Today's failure to dismiss that claim against Manning is a travesty of justice in so many ways, but more importantly, it makes it clear to future whistleblowers that the cost of blowing the whistle on gross government negligence is much, much higher. That's a very unfortunate situation for a country who at least used to pretend that it was important to keep its government in check.

Filed Under: aiding the enemy, bob woodward, bradley manning, chilling effects, denise lind, free speech, journalism, whistleblowing, yochai benkler
Companies: wikileaks

Bradley Manning Nominated For Nobel Peace Prize As People Begin Realizing How Damaging His Case Is To A Free Press

from the wake-up-people dept

With Bradley Manning pleading guilty to some of the lesser charges against him, Harvard law professor Yochai Benkler -- who is a possible expert witness in the trial -- has an excellent and detailed post about why the entire case against him should be seen as a threat to the nature of whistleblowing and a free press. He notes that the US prides itself on its support of the First Amendment, even in uncomfortable situations, but this case could flip that around in a very damaging way.

A country's constitutional culture is made up of the stories we tell each other about the kind of nation we are. When we tell ourselves how strong our commitment to free speech is, we grit our teeth and tell of Nazis marching through Skokie. And when we think of how much we value our watchdog press, we tell the story of Daniel Ellsberg. Decades later, we sometimes forget that Ellsberg was prosecuted, smeared, and harassed. Instead, we express pride in a man's willingness to brave the odds, a newspaper’s willingness to take the risk of publishing, and a Supreme Court’s ability to tell an overbearing White House that no, you cannot shut up your opponents.

Yet, in the case of Manning, the government is going much, much, much further. It is trying to make leaking information to the press the equivalent of espionage and aiding the enemy -- a capital offense. If you want to create chilling effects on free speech and a free press, this is how you do it. If you believe in the stories above, about the fundamental respect for the First Amendment, then the nature of the prosecution should worry you a great deal.

As for those who claim that leaking to Wikileaks is not like the Pentagon Papers or leaking something to the press, Benkler's detailed analysis shows why that's bunk. Since Wikileaks released some of the material that Manning sent them, the organization has been painted as being this evil anti-American organization, and there's also been a big spotlight on Julian Assange, who is certainly not presented as a particularly likeable character. But, as Benkler points out, before Wikileaks got that material, it was regularly seen as an upstart media property, and a great place for whistleblowers to go to expose fraud and corruption. In other words, the idea that Manning chose to go to Wikileaks to harm the US seems quite unlikely. His story of exposing wrongdoing by the US and forcing a debate on how to have America live up to its principles has more credibility when you realize just how Wikileaks was portrayed prior to Manning's material being submitted:

The reputation that WikiLeaks has been given by most media outlets over the past two and a half years, though, obscures much of this—it just feels less like “the press” than the New York Times. This is actually the point on which I am expected to testify at the trial, based on research I did over the months following the first WikiLeaks disclosure in April 2010. When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden's calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International's New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

It's sometimes difficult to remember that, given everything that happened in the past two and a half years.

Benkler goes on to point out that the "precedents" that the US tries to rely on to argue that whistleblowing to the press is a form of aiding the enemy are ancient, obsolete and laughable. Many of the arguments go back to some Civil War-era precedents, and even then, when you look at the details you realize they were discussing something extremely different than what happened with Manning (i.e., the cases involved using the press to send coded messages about confidential info, not releasing the info to the public).

In the end, Benkler makes a powerful point:

If Bradley Manning is convicted of aiding the enemy, the introduction of a capital offense into the mix would dramatically elevate the threat to whistleblowers. The consequences for the ability of the press to perform its critical watchdog function in the national security arena will be dire. And then there is the principle of the thing. However technically defensible on the language of the statute, and however well-intentioned the individual prosecutors in this case may be, we have to look at ourselves in the mirror of this case and ask: Are we the America of Japanese Internment and Joseph McCarthy, or are we the America of Ida Tarbell and the Pentagon Papers? What kind of country makes communicating with the press for publication to the American public a death-eligible offense?

What a coup for Al Qaeda, to have maimed our constitutional spirit to the point where we might become that nation.

Given all of that, you can see why some have nominated Manning for the Nobel Peace Prize. While it is highly unlikely that Manning will be given serious consideration for the prize, the more you look at the case, the more you realize how dangerous the US government's own argument is here, and how much of an attack it is on fundamental principles we supposedly believe in and fight for here in the US.

Filed Under: bradley manning, chilling effects, espionage, free speech, freedom of the press, nobel peace prize, whistleblowing, yochai benkler
Companies: wikileaks

EU Commissioner Kroes Speaks Out On Internet Openness; Says We Cannot Allow ISP Disconnects

from the say-it-again dept

EU Commissioner for the Digital Agenda, Neelie Kroes, has been saying a ton of smart things lately. A few months ago, we wrote about her pointing out that copyright is being used to punish & withhold and how copyright middlemen should get with the times and innovate, rather than looking to ratchet up enforcement.

Now she's continuing to speak more directly on the importance of openness online, including how it relates to copyright. It's not often you see a politician quote either the Free Software Foundation or leading thinker on these issues Yochai Benkler, but Kroes quotes them both in explaining the importance of openness:

Only the other day, the Free Software Foundation wrote to me about open standards. With their letter they enclosed something I don't normally get in the mail, a pair of handcuffs. Because they're worried about "digital handcuffs", and wanted to know if I am with them on openness. And the answer is yes. Let me show you, these handcuffs are not closed, not locked. I can open them if and when I want. That's what I mean by being open online, what it means to me to get rid of "digital handcuffs"...

[....]

Openness is also complex because sometimes it's unclear what it means.

For Yochai Benkler, it means, as he put it, that "it's open for anyone to create and innovate and share, if they want to… Because property is one mechanism of coordination. But it's not the only one." And he sees freedom as deriving from the extent to which actors can shift from one set of networks, from one way of doing things, to another. I agree: we need an environment where different models openly compete; and where people can openly choose.

Another thing she's clear on: openness can't mean kicking people offline, something she insists should not be allowed:

We cannot allow democratic voices to be silenced in that way. And I am committed to ensuring "No Disconnect" in countries that struggle for democracy. We must help such activists get around arbitrary disruptions to their basic freedoms.

Of course, that's talking about countries "struggling for democracy" such as those in the Arab Spring. But what about established democracies that are already putting in place laws to kick people offline -- like France with Hadopi? Hopefully she'll fight against such attacks on connectivity as well.

Either way, it's good to see that Commissioner Kroes continues to be committed to these issues. I had the pleasure of meeting Kroes a few months ago when she visited Silicon Valley, and I'll say that I was impressed not just by her knowledge, but by her willingness to dig deep into important issues concerning these kinds of policies. In an era where it seems like so many politicians only have a completely superficial understanding of how important the internet is, it's good to see someone in a high position who really does seem to grasp the significance of the internet, and how easily bad policies can do it harm. I don't always agree with her, but she certainly seems sincere in really pushing for true openness online.

Filed Under: free software foundation, internet freedom, neelie kroes, open standards, yochai benkler

Overreacting To Anonymous Is A Greater Threat To Freedom, Innovation & Creativity Than Any Of Their Attacks

from the preach-it dept

We've noted the disturbing trend by the press and politicians to totally overreact or to pump up the actual impact and/or threat of various Anonymous hacking attacks. We've also noted multiple times that such attacks can be incredibly counterproductive -- and the press and politician backlash is part of what we're talking about. However, there is a real risk in continuing to overreact to Anonymous. The most extreme example, of course, was NSA boss General Keith Alexander insisting that Anonymous might hack power grids... while also noting that it had no actual ability to do so.

Yochai Benkler has a typically brilliant essay in Foreign Affair magazine explaining why overreacting to and misunderstanding Anonymous is ridiculous and dangerous:

Seeing Anonymous primarily as a cybersecurity threat is like analyzing the breadth of the antiwar movement and 1960s counterculture by focusing only on the Weathermen. Anonymous is not an organization. It is an idea, a zeitgeist, coupled with a set of social and technical practices. Diffuse and leaderless, its driving force is “lulz” -- irreverence, playfulness, and spectacle. It is also a protest movement, inspiring action both on and off the Internet, that seeks to contest the abuse of power by governments and corporations and promote transparency in politics and business. Just as the antiwar movement had its bomb-throwing radicals, online hacktivists organizing under the banner of Anonymous sometimes cross the boundaries of legitimate protest. But a fearful overreaction to Anonymous poses a greater threat to freedom of expression, creativity, and innovation than any threat posed by the disruptions themselves.

Benkler argues that if you look at Anonymous' actions in the "context of protest," you begin to realize that what they're doing is much more about political speech than any sort of "security" risk or terrorist threat. After detailing a bunch of hacks -- where they all had political messages of sort attached to them, Benkler notes:

The political nature of these targets demonstrates why it is patently wrong to see Anonymous purely as a cyberthreat. Opinions about the justifiability of any given attack may differ, either because of the target or because of its form. The main challenge becomes one of deciding who gets to set the boundaries of legitimate protest. If one unquestioningly accepts the validity of all U.S. government decisions, as well as the current distribution of power in the private sector, the pattern of Anonymous’ attacks seems unambiguously dangerous. But surely there must be a place for civil disobedience and protest that is sufficiently disruptive to rouse people from complacence. Viewing Anonymous purely as a matter of crime reduction or national security will lead governments to suppress it and ignore any countervailing considerations. A more appropriate, balanced response to Anonymous’ attacks would err on the side of absorbing damage and making the hacks’ targets resilient, rather than aggressively surveilling and prosecuting the network and its participants.

He notes that some of Anonymous' attacks appear to go over the line from protest to something more problematic, but most of them really are just forms of traditional protest. But the overreaction threatens to hinder all sorts of online protests and speech, which is a very dangerous precedent to set. Hopefully those insisting that Anonymous is pure evil can take the time to read Benkler's full article and reconsider their views.

Filed Under: anonymous, foreign affair magazine, hacking, overreaction, yochai benkler

The Connection Between Wikileaks Censorship And PROTECT IP: Censorship Through Cutting Off Service Providers

from the this-is-a-problem dept

The always thought-provoking Yochai Benkler, has a new paper, which, unfortunately (and pointlessly given Benkler's key points -- see update below), is locked up behind an MIT paywall. It explores the "new vector" for censorship found in both the attacks on Wikileaks and the PROTECT IP Act: censorship by forcing service providers to not do business with certain websites. As the abstract notes:

The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of a new, extralegal path of attack aimed at preventing access and disrupting the payment systems and advertising of targeted sites. In this model, the attacker may be a government agency seeking to circumvent constitutional constraints on its power or a private company trying to enforce its interests beyond those afforded by procedural or substantive safeguards in the law. The vector of attack runs through the targeted site's critical service providers, disrupting technical services, such as Domain Name System service, cloud storage, or search capabilities; and business-related services, such as payment systems or advertising. The characteristics that make this type of attack new are that it targets an entire site, rather than aiming for removal or exclusion of specific offending materials; operates through denial of business and financial systems, in addition to targeting technical systems; and systematically harnesses extralegal pressure to achieve results beyond what law would provide or even permit.

As he notes, the law has historically focused on narrowly targeting any attack on speech by removing just the offending works. That's about the only way that such efforts could line up with the First Amendment (and some may reasonably even argue that point). Yet with government pressure from the likes of Senator Joe Lieberman and the new PROTECT IP Act, they now go for scorched earth policies in which a variety of service providers are suddenly pressured or required to no longer do business with the sites in question. Payment processors, "information location tools," ad networks and DNS providers are all told they have to cut off the offending site. While the site itself may not be touched, the goal is to effectively starve such sites out, by blocking most reasonable services that such a site needs to exist.

While putting tremendous compliance burdens on those third party service providers, it also goes against the very fundamentals of the First Amendment in that it doesn't merely seek to stop illegal speech, but takes a broad attack against entire sites. The risk here was clearly laid out earlier this year by over 100 law professors including many of the most respected in the field. The other side has only trotted out one lawyer on their side: Floyd Abrams (who, while famous as a First Amendment lawyer, also does a lot of work with Hollywood). Supporters of this massive threat to the First Amendment keep pretending that as long as they say "Floyd Abrams says it's fine!" that they can ignore everyone else raising serious and significant First Amendment concerns. The problem, of course, is that even Abrams' "support" is pretty weak.

In fact, if you read what Abrams actually says (pdf), at points he appears to come out against provisions of PROTECT IP as violating the First Amendment. Such as this:

Any bill providing injunctive relief should be limited to halting infringement and prohibiting future infringement online, not acting as a prior restraint on protected speech in the future. For example, if a site or domain is seized or blocked for infringement, operators must be free to post all their non-infringing content elsewhere, as well as on their original site, once the infringing content is removed.

Except, as we've seen with the Puerto 80 case, the government does not allow site operators to repost non-infringing content on their original site at all. Given that Benkler, in the paper above, compares PROTECT IP to the Wikileaks situation, it should equally come as no surprise that Abrams last year ran into some problems for misrepresenting Wikileaks' actions in trying to support censoring that site.

In the long run, I find it difficult to see how one can be intellectually honest and side with Abrams on these issues, as compared to Benkler, who makes a pretty compelling case that these kinds of attacks on free speech are something to be worried about.

Update: Benkler sends over a link to a non-paywalled version (pdf).

Filed Under: censorship, protect ip, service providers, third parties, yochai benkler

There Are Plenty Of Ways For Gov't Watchdogs To Do Their Jobs Without Newspapers

from the life-goes-on dept

Following a series of stories from ex-journalists insisting that the death of newspapers would lead to an age of corruption and the downfall of democracy, Yochai Benkler has written up an article explaining just how ridiculous all this sounds. He points out -- as have many others -- that just because newspapers go away, it doesn't mean that journalism goes away -- and then points out a bunch of different models of non-newspaper watchdog/anti-corruption publications that work quite well today. And, should newspapers actually go away, many additional options would likely show up, as well. The idea that people suddenly stop watching the government just because a newspaper is not around makes little sense. For a bunch of "journalists" to make such a claim, when there's ample evidence that alternative models do work, suggests that they're not doing a very good job reporting on those alternative models.

Filed Under: corruption, democracy, journalism, newspapers, yochai benkler