There Are Many Reasons To Be Concerned About The Impact On Press Freedoms In The Assange Indictment

from the normal-journalistic-activity dept

Yesterday, we wrote a bit about the Julian Assange indictment, noting that it was focused on CFAA and conspiracy arguments, rather than (what many people expected) Espionage Act claims. The CFAA charge of trying to help hack a hashed CIA password that Assange instructed Chelsea Manning to supply does raise some real legal questions. However, as we noted, there were still some significant press freedom concerns linked to the case (and we fully expect those concerns to grow as the inevitable superseding indictment is released).

Among the many concerns are that from what's in the initial indictment, it appears that the DOJ is, in fact, presenting perfectly normal, reasonable and legal, steps that many journalists take to cultivate and protect sources, and using that as evidence of the "conspiracy" here. From the indictment:

It was part of the conspiracy that Assange and Manning used the "Jabber" online chat service to collaborate on the acquisition and dissemination of the classified records, and to enter into the agreement to crack the password stored on the United States Department of Defense computers connected to the Secret Internet Protocol Network.

It was part of the conspiracy that Assange and Manning took measures to conceal Manning as the source of the disclosure of classified records to WikiLeaks, including removing usernames from the disclosed information and deleting chat logs between Assange and Manning.

It was part of the conspiracy that Assange encouraged Manning to provide information and records from departments and agencies of the United States.

It was part of the conspiracy that Assange and Manning used a special folder on a cloud drop box of WikiLeaks to transmit classified records containing information related to the national defense of the United States.

Again, the CFAA claims of a failed attempt to actually crack a password seem like they could be problematic for Assange (even if the maximum sentence for such things is less than Assange has already spent locked up in the Ecuadoran embassy in London). That goes beyond standard journalism practices. But basically everything else described above as evidence of the "conspiracy" are very standard journalistic practices around cultivating and protecting sources.

Many press freedom organizations are reasonably worried. The Freedom of the Press Foundation put out the following statement:

For years, the Obama administration considered indicting WikiLeaks publisher Julian Assange, before rightly concluding it could not do so without encroaching on core press freedoms. Now almost nine years in, the Trump administration has used the same information to manufacture a flimsy and pretextual indictment involving a “conspiracy” to violate the Computer Fraud and Abuse Act—based entirely on alleged conversations between a journalist and source. While the Trump administration has so far not attempted to explicitly declare the act of publishing illegal, a core part of its argument would criminalize many common journalist-source interactions that reporters rely on all the time. Requesting more documents from a source, using an encrypted chat messenger, or trying to keep a source’s identity anonymous are not crimes; they are vital to the journalistic process. Whether or not you like Assange, the charge against him is a serious press freedom threat and should be vigorously protested by all those who care about the First Amendment.

The Committee to Protect Journalists is similarly concerned about the same issues:

"The potential implications for press freedom of this allegation of conspiracy between publisher and source are deeply troubling," said Robert Mahoney, deputy director of the Committee to Protect Journalists. "With this prosecution of Julian Assange, the U.S. government could set out broad legal arguments about journalists soliciting information or interacting with sources that could have chilling consequences for investigative reporting and the publication of information of public interest."

The Knight First Amendment Center also raises similar concerns:

“The indictment and the Justice Department’s press release treat everyday journalistic practices as part of a criminal conspiracy. Whether the government will be able to establish a violation of the hacking statute remains to be seen, but it’s very troubling that the indictment sweeps in activities that are not just lawful but essential to press freedom—activities like cultivating sources, protecting sources’ identities, and communicating with sources securely.”

EFF is also concerned:

While the indictment of Julian Assange centers on an alleged attempt to break a password—an attempt that was not apparently successful—it is still, at root, an attack on the publication of leaked material and the most recent act in an almost decade-long effort to punish a whistleblower and the publisher of her leaked material. Several parts of the indictment describe very common journalistic behavior, like using cloud storage or knowingly receiving classified information or redacting identifying information about a source. Other parts make common free software tools like Linux and Jabber seem suspect. And while we are relieved that the government has not chosen to include publication-based charges today, if Assange is indeed extradited, the government can issue superseding indictments. It should not do so. Leaks are a vital part of the free flow of information that is essential to our democracy. Reporting on leaked materials, including reporting on classified information, is an essential role of American journalism.

So, yes, the DOJ could have gone farther and did not. But the very fact that it has spent all this time and the best thing it could come up with to charge Assange was an alleged attempt to hack a password, is pretty weak. The attempt to puff even that up into a "conspiracy" by describing common journalistic practices is a real worry, as is anything the DOJ later decides to throw on the pile with future charges.

Filed Under: cfaa, conspiracy, doj, free speech, indictment, journalism, julian assange, source protection
Companies: wikileaks

Grandstanding GOP Senators Continue To Mislead About Social Media Bias, Demand A 'Fairness Doctrine' For The Internet

from the stop-it dept

We've talked for a while about the sheer silliness of (mainly) Republican politicians whining about supposed "anti-conservative bias" on social media platforms. As we've pointed out, the actual evidence hasn't shown any evidence of bias. The random anecdotal examples of badly moderated content have mostly just shown how difficult it is to do content moderation at scale. The "bad" moderation decisions impact lots of folks across the political spectrum -- it's just that some grandstanding Republicans like to engage in confirmation bias (the only actual bias that seems to be occurring here) to suggest the moderation mistakes are politically motivated. We've pointed out multiple times now that crying wolf on this issue is not a good look for conservatives -- on multiple levels.

Beyond the fact that the evidence seems to disprove the claims of bias (oh, and yet another study has shown no evidence of bias), for years these very same Republicans kept attacking the idea of the "fairness doctrine," which was an FCC rule in place for a few decades, demanding "equal representation" of political views on the public airwaves. It hasn't been in place for a while, but for a few years, this same group of Republicans grandstanded about false claims that Democrats were trying to bring it back. And yet, what they seem to be demanding now is the return of the fairness doctrine, but in an even more ridiculous way. Rather than on the public airwaves -- where at the very least there was some legitimate claim to the government being able to set some conditions -- these Senators now seem to want to force private companies to run businesses the way they want them to. What a bunch of hypocrites.

And the largest of the hypocrites is Senator Ted Cruz, who has continued to repeat this myth, holding multiple hearings on the topic, including a new one yesterday, with representatives from Facebook and Twitter in attendance. Someone from Google was supposed to be there but (get this), Ted Cruz rejected the Google witness, likely after discovering that Google was sending a former Ted Cruz staffer, who would have done a nice job debunking his former boss's nonsense. Kinda ironic, in a hearing on platforms supposedly blocking conservatives from speaking, the Senate itself decided to block a conservative from speaking.

Most of the hearing went pretty much as planned, with the usual nonsense. Cruz, once again, misrepresented the nature of Section 230 of the CDA and also made noises about changing it. He also threatened other attacks on social media companies, including antitrust. The big "gotcha" moment that some in the press have picked up on was particularly dumb. Cruz rolled out an anti-abortion quote from Mother Theresa that had been used in an ad on Twitter that was apparently blocked, and demanded that Twitter and Facebook execs answer "is this hate speech?".

That, of course, misses the point massively. As Twitter's representative on the panel, Carlos Monje Jr. noted, the tweet was caught in an automated system review, but that the advertiser behind it remains as an advertiser in good standing on the platform -- and he also noted that advertisements on both sides of the abortion debate had been blocked at times on Twitter, which makes total sense, given the strong emotions and controversy felt around that issue. But the bigger point is trotting out a single example is nonsense. It's grandstanding. As we've discussed time and time again, content moderation is an arena of massive gray space, rather than black and white. There are tons of judgment calls, and much of it depends on what it is the platform is actually trying to accomplish. Some platforms don't want controversial content. Some platforms don't want "hate" speech. But what falls into those categories is an open question and in a free market system (the kind Republicans used to claim they supported), we let the companies decide for themselves.

Thankfully, a bunch of conservative/Republican groups and commentators spoke out against Cruz's nonsense as well. The group Americans for Prosperity put out a statement calling out Cruz's nonsense:

... asking the government to police online speech – either through direct action or by cajoling private firms – sets a dangerous precedent that will undermine essential elements of free speech. Government regulation of digital speech won’t protect free speech. It will only increase the likelihood of government censorship.

“Tech companies have the freedom to run their businesses as they see fit, including setting standards for what user content they do and do not want to host, and Americans have the right to speak through alternative platforms or share their opinions elsewhere.

“Today’s largest tech platforms may have the means to manage the legal risk of administering an online speech code but smaller startups do not, so regulation intended to curtail the influence of large tech companies would only cement it.”

TechFreedom's Berin Szoka didn't mince words either:

“Mind-bogglingly, it’s conservatives who are now leading the charge to resurrect the Fairness Doctrine,” continued Szóka. “Conservatives spent nearly 80 years crusading against government meddling in media. Yet now, they’re trying to subject website operators to essentially the same, hopelessly arbitrary standard of ‘neutrality’ they long opposed. They’ve twisted themselves into ideological pretzels by convincing themselves that Section 230 is some kind of special subsidy to ‘Big Tech’ and that the law has always required neutrality. Both claims are patently false. All websites that host user content need clear legal protections against broad liability for user content. Without such protections, the fear of being sued will shut down the smallest sites — and, ironically, protect Big Tech from competition. But even the biggest sites will do less of the kind of content moderation that makes online communities and services usable. In the end, how they run their services will become subject to political pressure. Sadly, it already is, which seems to be the purpose of conservative fear-mongering on this issue.”

“The anecdotal examples of anti-conservative bias in content moderation just don’t hold up,” concluded Szóka. “Cruz, Graham and other leading Republicans have repeatedly cited bogus examples of conservatives being ‘censored.’ Most exemplary is the brazenly false claim that now Sen. Marsha Blackburn was censored for her pro-life views. In fact, her Senate campaign launch video centered on the defamatory claim that Planned Parenthood was selling baby body parts. Neither this video nor her account were taken down by the major platforms; instead, they simply declined to allow her to pay to promote the video because it violated their terms of service. This isn’t censorship; it’s just ad companies preventing the abuse of their advertising systems. Sadly, the companies involved haven’t had the courage to debunk these claims clearly because of the vast political pressure wielded against them by lawmakers bent on partisan revenge. Their timidity should remind us all that the First Amendment bars bullying media companies just as much as explicit censorship.”

Indeed, during the hearing, Marsha Blackburn brought up the bogus ad controversy, saying: “Should Twitter allow ads that denounce Planned Parenthood for selling baby body parts?” That's a ridiculous question for a sitting Senator to ask. No one in Congress should be determining what ads are allowed or not allowed on any platform. And, again, Twitter did allow Blackburn's video. It just said such an ad violated its policies (which it did, because it was nonsense).

Others have raised this point in the past as well. The Cato Institute last year questioned why Ted Cruz -- a supposed conservative free marketer -- seems so against property rights when it comes to the property rights of internet companies. It's almost as if he's a total hypocrite who believes in government intervention against companies he dislikes, but insists on no government intervention when it's companies he does like. Remember, this is the same Ted Cruz who falsely attacked "net neutrality" as a government takeover of the internet.

And now he's whining that the government needs to force neutrality on the internet.

How can anyone possibly take him seriously?

Filed Under: cda 230, conservative bias, fairness doctrine, grandstanding, section 230, senate, ted cruz

It's Fun To Laugh About Congressional Reps Suing A Satirical Internet Cow, But It's A Real Attack On Free Speech

from the we-need-an-anti-slapp-law-now dept

I originally wrote a draft of this post over the weekend, before Nunes, filed a second bullshit lawsuit against Liz Mair, but now that that has happened, it has become even more relevant. I've lightly updated the original text to include this new lawsuit.

Lots of folks laughed about Rep. Devin Nunes' crazy lawsuit against a satirical cow on Twitter that mocked him, but much of the case is no laughing matter for those on the receiving end. While it is unlikely (but not impossible) that a court will let the case get far enough to unmask who is behind the satirical Twitter accounts, those individuals will still need to lawyer up. Also, while it gets ignored in much of the reporting on the case, there was one named defendant: political strategist/communications expert Liz Mair, who seemed to get sued for tweeting criticisms of Nunes.

While the fake cow account got hundreds of thousands of new followers, Mair didn't get quite the same bump. But she's got even more crap to deal with in this case -- as well as the second case that Nunes just filed. She's now written a thoughtful post on just how totally fucked up it is that a sitting member of Congress would sue a critic for being mean to him on Twitter:

... it’s vitally important that the entire nation understands what this lawsuit is really about: A sitting member of the U.S. government, specifically, a congressman, is trying to stifle free speech — mine, yours and every other American’s — by using litigation as a cudgel to bully and intimidate.

The fact is, free speech is recognized and protected by the First Amendment of the U.S. Constitution. The Framers correctly considered it a God-given right, an inherent freedom so important to the system of government they were establishing that they explicitly stated its existence straight at the outset of the Bill of Rights.

James Madison, fourth president of the United States, father of the Constitution and co-author of the Federalist Papers, famously commented that “the censorial power is in the people over the government, and not in the government over the people.” Nunes’ lawsuit flips that notion entirely on its head.

There's a good history lesson in the article that is worth clicking through to read, but a key point:

The plain fact is, Rep. Nunes’ lawsuit constitutes a grave threat to the long recognized and respected civil liberties belonging to each of us, and indeed our system of governance writ large. Madison also said, “All men having power ought to be distrusted to a certain degree.” He was right, as was British historian Lord Acton when he said, “Power tends to corrupt.”

This is why Americans should scrutinize our public officials’ political committee expenditures — including those of leadership PACs — voting records, public statements, financial interests, behavior and conduct. It’s what the Framers wanted, it is what the First Amendment guarantees a right to do, and it is sound policy to boot. True freedom and good, constitutional government are impossible to maintain unless each of us is able to question, research and review what our public officials do, based on publicly available information and interactions with them and their staff, and then engage in unimpeded, public debate about what we find. They work for us, not the other way round.

Mair will almost certainly win these cases, but as someone who has some experience on this front, the process she's about to go through is painful. It is resource intensive, not just in legal fees, but in the utter distraction it creates for every other thing you do, not to mention the insane amount of time it takes to defend against such attacks on your free expression.

Mair doesn't mention it in her piece, but the situation she's facing is yet another reason why we need better anti-SLAPP laws, both individually within every state, as well as at the federal level. Of course, for it to happen at the federal level, we'd need Congress to get on board with a federal anti-SLAPP law, and I'm guessing that Devin Nunes is an automatic "no" vote.

Update: If you're so inclined, Mair has set up a donation page which will go towards legal fees and (if more than that is covered) towards holding government officials accountable.

Filed Under: 1st amendment, anti-slapp, devin nunes, free speech, liz mair, slapp

Singapore Government Pushes Fake News Law Which Will Give It More Options To Shut Down Critics

from the legislating-the-news dept

Fake news laws aren't harmless. They don't protect the public. They're useless. And they lend themselves to censorship. Given these factors, it's tough to believe any of the proponents of fake news laws are proceeding in good faith but blinded by good intentions and fuzzy logic.

Anywhere they've been put in place, they've lead directly to governments taking action against political opponents, dissidents, and activists. Excuses are made about national security and protecting the public, but in the end, it's the public that ends up short on protection.

Singapore's new fake news bill is no exception. Legislators began pushing this bill last year, using their own fake news to claim the proposal had widespread support from the country's residents. The committee behind the legislation heavily editorialized the feedback it received at a public hearing, presenting a vocal opponent's comments as being supportive of instituting a fake news law.

Roughly a year later, the bill has materialized, according to the New York Times.

Singapore introduced draft legislation on Monday that it said would combat false or misleading information on the internet, but critics said the measure could be used as a cudgel against the government’s critics.

The legislation, called the Protection From Online Falsehoods and Manipulation Bill, would require websites to run corrections alongside “online falsehoods” and would “cut off profits” of sites that spread misinformation, among other measures, according to the Ministry of Law.

The bill is widely expected to become law in the coming weeks because it has support from Prime Minister Lee Hsien Loong’s People’s Action Party, which has a supermajority in Parliament

The bill can't define "fake news" with any particularity. This all but ensures the law, if it passes, will be abused frequently. What's being called fake news is anything that "reduces public confidence" or "incites hatred or ill will" between groups of people. So, yeah, this would cover a lot of what's posted to social media, especially the "inciting ill will" part.

Supposedly, this new law won't target criticism, satire, or parody. But that's been said about similar laws, which have gone on to target criticism, satire, and parody. The government will decide what is or isn't "truth" and enforce accordingly.

According to a draft of the bill, punishments for some violations could include fines of up to about $44,000 and a prison term of up to six years for individuals, or fines of up to about $738,000 in “any other case.”

This will be a welcome addition to the censorial toolkit Singapore's government can wield against critics and opponents. As the New York Times article notes, Singapore bears a passing resemblance to a democracy thanks to its election process, but there has never been a change in power as a result of this process. The government already uses the country's criminal defamation law to muffle criticism. This law won't improve the current state of speech in Singapore. It will only make it worse.

Filed Under: censorship, criticism, fake news, free speech, politics, singapore

European Parliament Moves Forward With 'Terrorist Content' Regulation That Will Lead To Massive Internet Censorship

from the because-of-course dept

Last week we wrote (not for the first time) about the really dreadful Terrorist Content Regulation making its way through the EU regulatory process. As we noted, this is Article 13 on steroids. Everything that's bad about Article 13 is worse in the Terrorist Content Regulation, even though it's getting much less attention.

Perhaps because it's getting so little attention it just sailed through an EU Parliament committee's approval process. This was in the LIBE Committee, which is supposedly in charge of protecting civil liberties. And yet here, it seems to be stamping them out.

The text, as it was adopted, states that an authority (administrative or judicial) can order any actor of the Internet to remove a content under one hour. This unrealistic obligation will destroy small and medium platforms and, in contrast, reinforce Google and Facebook which are already working together with States to enforce mass and unchecked censorship – this is the very purpose of the Regulation proposed last September by the European Commission.

Once again, the European Parliament has proved that it was unable to resist from the pressure of the European Commission and governments. After the adoption of the Copyright Directive two weeks ago, this vote is a new and even more aggressive step towards mass and automated censorship.

Apparently, the LIBE did strip out some of the other problematic elements of the Regulation -- including its attempt to effectively weaponize terms of service to be legally binding on platforms to take down content even if it's legal. However, it leaves in the 1 hour takedown demand, which is concerning. Also, some in the EU Parliament supposedly plan to offer amendments to add back in the awful stuff that LIBE took out.

The text will now go before the entire EU Parliament, perhaps as early as next week.

La Quadrature du Net has put together a campaign page to help EU citizens contact their MEPs to educate them about what a disaster this regulation will be. Unfortunately, with the issue receiving so little public attention (especially compared to things like the EU Copyright Directive), there's an unfortunate chance this thing just sails through. It's the type of thing where politicians who don't understand the issues at all will see something to stop "terrorist content" and assume "that sounds good." The fact that the EU Commission and now the Civil Liberties Committee just let this move forward is a travesty. But, as we've noted, the EU seems intent on stamping out every nice thing about the internet, so it'll just throw this one on the pile.

Filed Under: censorship, eu, eu parliament, filters, libe, terrorist content, terrorist content regulation

Tennessee Senate Unanimously Passes Actual Anti-SLAPP Bill

from the go-forth-and-opine-freely dept

Some good news is one the way for Tennesseans. Attorney Daniel Horwitz -- who knows his way around stupid libel lawsuits -- sends word that a revamp of the state's mostly-useless anti-SLAPP law is a step or two away from landing on the governor's desk.

The current law does nothing to shield citizens from bogus lawsuits clearly intended to silence criticism. This lack of protection has resulted in a number of merit-less lawsuits being filed. One of the most ridiculous -- a former university program head suing his replacement for things a journalist said -- managed to make its way all the way up to the state's appeal court. In the end, the defendant was awarded $10,000 in legal fees, but none of that was guaranteed when the plaintiff started wasting everyone's time and money.

As the law stands now in Tennessee, only communications to public officials about public entities are shielded from defamation lawsuits. It doesn't cover things like negative reviews of businesses, criticism of any public figure, or -- like the case above -- things defendants never actually said.

The new law would actually function like an anti-SLAPP law should. It would halt discovery until a ruling on the anti-SLAPP motion and allow the prevailing party to recover fees.

Under this bill, if a legal action is filed in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.

The petitioning party will have the burden of making a prima facie case that a legal action against the petitioning party is based on, relates to, or is in response to that party's exercise of the right to free speech, right to petition, or right of association. If the petitioning party meets this burden, the court will dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action.

The bill passed both the state House and Senate, with the Senate sending a message with a decisive 33-0 vote in favor of the bill. If this passes, Tennessee will join the small minority of states willing to protect their residents from frivolous lawsuits filed solely to shut them up.

Filed Under: 1st amendment, anti-slapp, defamation, free speech, tennessee

Devin Nunes Has Filed A Second Bullshit Defamation Lawsuit Telling You All About A News Article He Doesn't Want You To Read

from the has-devin-nunes-read-the-1st-amendment dept

It appears that Devin Nunes wants to become the new poster-child for filing bullshit SLAPP suits to silence and intimidate his critics. Just a few weeks after filing an obvious SLAPP suit against two satirical Twitter accounts, Republican strategist Liz Mair, and Twitter itself, Nunes is back in court again, suing news giant McClatchy and Liz Mair again. The first lawsuit was for $250 million. This one is for $150 million. Both are SLAPP suits that seemed designed to shut up his critics -- especially Mair. Nunes is represented by the same lawyer, Steven Biss, in both cases (Biss has, well, a colorful history).

The latest lawsuit is as equally ridiculous as the first. It is mostly about the very same article that was central to the first lawsuit, an article by The Fresno Bee (a McClatchy-owned newspaper), talking about how a winery that was partly owned by Nunes was involved in a scandal involving cocaine and potentially underage prostitutes on a yacht. The McClatchy article has (from its initial publication), made clear that Nunes' investment in the winery doesn't involve any role with the winery or any management functions:

"Rep. Devin Nunes is one of a few friends (Baggett) invited to invest in the winery in 2005. None of the investors has ever been involved with the management of the company. Robin is the sole managing partner and ultimate decision maker at Alpha Omega," Carter said.

The article has also always made clear that Nunes, as an investor, was unlikely to have any knowledge of the questionable activities associated with the winery:

Limited partners are only liable for the debts equal to their investment in the company, and typically have "little knowledge or participation in the activities of the partnership," according to the California Tax Service Center.

But you wouldn't know any of that from reading the lawsuit, which reads like a conspiracy theory.

Throughout 2018, McClatchy and its reporter, MacKenzie Mays, acting in concert with a Virginia political operative and her handlers, schemed to defame Plaintiff and destroy his reputation. The central purpose of the scheme was to interfere with Plaintiff’s Congressional investigation of corruption by the Clinton campaign and alleged “collusion” between the Trump campaign and Russia during the 2016 presidential election. Using the enormous power of McClatchy’s nation-wide resources, McClatchy and its co-conspirators relentlessly attacked Plaintiff both in print and digitally – falsely and maliciously accusing Plaintiff of horrible crimes and improprieties, falsely attributing to him knowledge he did not have, implying that he was involved with cocaine and underage prostitutes, and imputing to Plaintiff dishonesty, unethical behavior, lack of integrity, and an unfitness to serve as a United States Congressman. Defendants’ statements were knowingly false and grossly offensive. They evince a heedless, palpable and reckless disregard for the truth.

So, a few things about this. First of all, it's not true. As noted above, the article never even came close to implying he had knowledge of the cocaine and underage prostitutes -- and flat out said the opposite was likely true. It's a fascinatingly stupid strategy to make claims in your defamation lawsuit that are literally contradicted in the article you're suing over.

As lawyer Max Kennerly points out, the lawsuit is so stupidly bad, that it claims that the McClatchy reorter, Mackenzie Mays, "chose to emphasize the words "woman," "Devin" and "cocaine." Except, that's not true. The only reason those words are highlighted is because that's how Twitter's search function works. If you search for certain words, Twitter shows them to you in bold. It was not the original tweet. Here's the way it's shown in the lawsuit, with those words bolded:

Here's the actual tweet, which shows those words are not bolded:

And... here's how that very same tweet appears if you search on Twitter for "woman, devin, cocaine":

In other words, it sure looks like Nunes and/or Biss just did a search on "woman, devin, cocaine" and stupidly assumed that because Twitter bolded the search terms, that Mays herself had done so in her tweet. This is stunningly stupid.

And that's not all that this lawsuit gets so incredibly wrong. The lawsuit repeats over and over again that the article suggested Nunes "was involved" in the event on the yacht, even though the article explicitly states otherwise. In trying to claim that people took the Fresno Bee article to mean that Nunes was involved with the party, it points to a reporter from NBC News, Kasie Hunt, saying that "the defamatory meaning of the article was clearly understood by all who read and saw McClatchy's publication," and then uses Hunt's tweet as proof that people took the article to mean Nunes was involved. Except the very tweet by Hunt that is included in the lawsuit flat out states that "Nunes is totally uninvolved in day to day decisions."

In other words, Nunes' complaint's own "evidence" that readers took the article to mean that Nunes was involved literally disproves that by saying he was not involved.

There are some later claims that suggest the original Fresno Bee article had inartfully worded a sentence regarding another controversy at the winery, involving selling wines to Russian clients, in manner that could confuse some readers about the timing of those sales. Specifically, the article originally stated: "Nunes ties to Alpha Omega made national headlines last year because it was discovered the winery sold wine to Russian clients while the congressman was at the helm of a federal investigation of Russian meddling into the presidential election...." The inartful wording is that this sentence could be read to suggest that the wine sales happened while Nunes was helming the investigation. But it could also be read (accurately!) to suggest that the "national headlines" about this story came about while he was helming the investigation. The Fresno Bee later made a few edits to clarify that sentence. Writing a poorly written sentence which could have multiple interpretations (none of which would actually be defamatory) is not defamation. The lawsuit even claims that the Fresno Bee editing that sentence to clarify it without adding an editor's note is somehow "perpetrat[ing] a fraud on its readers."

Other claims are equally bizarre. The lawsuit says that when the Fresno Bee's exec editor, Joe Kieta, stated that the paper "had never had to issue a retraction on its coverage of Nunes," that was "deceitful" because of the clarifying edit discussed above. The lawsuit really tries to claim that a clarifying edit is somehow proof of nefarious intent, rather than just a confusingly worded sentence which can easily be read in two different ways, which the paper quickly changed to clarify.

As for this second attempt at suing Mair, the lawsuit again makes bizarre claims:

Prior to March 19, 2019, Mair’s username on Twitter was “BrandValue$4B”. After Plaintiff filed suit against Mair and others in the Circuit Court for the County of Henrico [Nunes v. Twitter et al., Case CL19-1715], Mair changed her username to “BeingSuedByDevinNunes”. Mair is a political operative and a digital terrorist for-hire. Her job on behalf of her benefactors is to target the opposition, carry out smear campaigns in coordination with third-parties in Virginia and elsewhere in the United States, and, in the process, to create extreme negative publicity for the targets, in this case Plaintiff. Mair is conscious that Twitter is an echo-chamber. She intentionally changed her identity on Twitter to exploit Plaintiff’s name solely to obtain more followers and to maliciously increase the audience, scope and breadth of her false and defamatory statements.

It takes quite a lot of chutzpah to (1) file a bogus SLAPP suit against a critic, and then (2) file a second such SLAPP suit against the same person and argue that her calling attention to the first bogus lawsuit is itself "malicious."

Most of the other claims in the lawsuit are equally bizarre. It argues that the Fresno Bee's Editorial Board suggesting that Nunes should have responded to questions about the yacht/cocaine/prostitutes story is "defamatory by implication." It says that other Fresno Bee stories by Mays about ethics complaints filed with the Office of Congressional Ethics (about Nunes' investment in the winery) were defamatory as well. The lawsuit literally states that "McClatchy had no business republishing the ADLF ethics complaint." It says similar things about other such complaints, including arguing that they were "total shams." Apparently Nunes thinks that he's allowed to dictate McClatchy's editorial policies and that no one is allowed to even write about ethics complaints if Nunes personally deems them to be shams filed by "left-wing" or "left-leaning" groups.

Remember, this is the same Congressman who just a few weeks ago voted for a House Amendment about how free speech should be supported. And now he's suing for $400 million over some critics.

The lawsuit also asks for an injunction ordering "McClatchy to deactivate all hyperlinks to all online articles and all tweets, retweets, replies and likes by McClatchy or any of its agents that contain false and defamatory statements about Nunes." Except, tons of defamation case law have made it clear that such an injunction is unconstitutional. And while there are a few courts that have recently tried warming to the idea of injunctions around defamatory content, they are not that widespread, and the injunctions tend to be very, very limited. For the most part, though, defamation cases can't get injunctions -- just monetary damages.

Either way, this is another SLAPP suit and another attack on free speech by Nunes. If Virginia actually had a strong anti-SLAPP law, one would hope that Nunes would end up on the hook for the legal fees here. Unfortunately, while Virginia recently updated its anti-SLAPP law, it doesn't act the way most anti-SLAPP laws act -- pausing the expensive parts of the lawsuit, and it doesn't require that the plaintiff in the SLAPP suit pay the legal fees of the defendant (though, it does allow the court to decide to award attorneys' fees -- so it's still a possibility).

Still, Devin Nunes, as a sitting Representative in Congress, who has taken an oath to defend the Constitution, is making a total mockery of the First Amendment of the Constitution in suing his critics for clearly protected free speech.

Filed Under: defamation, devin nunes, free speech, liz mair, steven biss, tweets, winery
Companies: fresno bee, mcclatchy, twitter

UK Now Proposes Ridiculous Plan To Fine Internet Companies For Vaguely Defined 'Harmful Content'

from the what-the-what? dept

Last week Australia rushed through a ridiculous bill to fine internet companies if they happen to host any "abhorrent content." It appears the UK took one look at that nonsense and decided it wanted some too. On Monday it released a white paper calling for massive fines for internet companies for allowing any sort of "online harms." To call the plan nonsense is being way too harsh to nonsense.

Theresa May herself announced the plan in a video that she posted to the very same social media she insists is harmful to children, because consistency is not a strong point of people looking to shackle the internet:

If you watch that video, she literally pulls out a "but think of the children" argument, insisting that social media must be tamed into stopping "harmful" content. Of course, what she leaves out is that most of the "harmful" content she's upset about is perfectly legal. And, much of it is available not just via social media. But, don't worry about that: this is all about a moral panic around social media.

The plan would result in massive, widespread, totally unnecessary censorship solely for the sake of pretending to do something about the fact that some people sometimes do not so nice things online. And it will place all of the blame on the internet companies for the (vaguely defined) not so nice things that those companies' users might do online.

The basic plan is the kind of nonsense people come up with when they don't have the slightest clue how the internet (or human beings) actually work. It would establish a new regulator who would come up with a "code of practice" for internet companies (broadly defined) requiring them to have a "duty of care" to magically stop basically any (ill-defined) bad behavior online. The regulator could then massively fine any internet company that breaks its nonsense rules. The rules appear to be totally vague and would require blocking "harmful content" even if it's perfectly legal just because someone says its bad. Failure by companies (after being fined) to wave a magic wand and stop bad stuff online could lead to full site blocking by ISPs to access such sites.

There are so many bad ideas packed into this white paper, it's legitimately difficult to know where to start. But, let's start with this. Among the content that will not be allowed is trolling. Really.

Cyberbullying, including trolling, is unacceptable. Being bullied online can be a deeply upsetting experience, particularly for children or other vulnerable users.

How will internet companies be forced to deal with trolling (which is not at all defined in the paper). Well, apparently the new regulator will "set out steps that should be taken" to "tackle cyberbullying." What does that actually mean? Who the hell knows.

There's also a special section about preventing people from saying mean things to public figures. Seriously.

As set out in Box 14, those involved in public life in the UK experience regular and sustained abuse online, which goes beyond free speech and impedes individuals’ rights to participate. As well as being upsetting and frightening for the individual involved, this abuse corrodes our democratic values and dissuades good people from entering public life

Basically, if you're famous, the UK wants to force internet companies to stop anyone from ever being mean to you. Poor famous people.

And, of course, there's a whole "fake news" section, which ignores how basically every anti-fake news law is actually being used to censor government critics.

Companies will need to take proportionate and proactive measures to help users understand the nature and reliability of the information they are receiving, to minimise the spread of misleading and harmful disinformation and to increase the accessibility of trustworthy and varied news content.

At the same time, the very same section says that companies also have to have some sort of bogus "fairness doctrine" to promote diverse viewpoints:

Promoting diverse news content, countering the ‘echo chamber’ in which people are only exposed to information which reinforces their existing views.

What if the information countering the echo chamber is bogus propaganda and disinformation? Well, then this part of the law would seem to contradict itself. Good luck sorting it out everyone!

Also no longer allowed: any depiction of violence or glamorization of weapons.

Violent content ranges from content which directly depicts or incites acts of violence, through to content which is violent with additional contextual understanding or which is harmful to users through the glamorisation of weapons and gang life.

As far as I can tell, war films would no longer be allowed under this rule. Or boxing matches. Or, really, something like this:

Of course, that's not all. The report includes a table of "online harms" which is broad and without much in the way of definition:

If that seems vague, it's by design. And, they make it clear that anything else can be added at any time:

This list is, by design, neither exhaustive nor fixed. A static list could prevent swift regulatory action to address new forms of online harm, new technologies, content and new online activities.

Yeah, that's an open invitation to censorship.

And, no this is not just targeting large sites. As UK lawyer Graham Smith points out, under the terms of the proposal, any internet blog with comments is subject to the law. It literally says this in section of 4.2:

There are two main types of online activity that can give rise to the online harms in scope or compound their effects:

• Hosting, sharing and discovery of user-generated content (e.g. a post on a public forum or the sharing of a video).
• Facilitation of public and private online interaction between service users (e.g. instant messaging or comments on posts).

And, of course, as Thomas Baekdal points out, blaming the internet companies is completely ridiculous in this situation. The law doesn't apply to other sources of similar content, such as UK news companies (so long as they don't have comments on their stories), even if they post the exact same content. As Baekdal notes, more people saw video clips of the Christchurch massacre when various UK tabloids published those clips than those who watched it on Facebook. But the law applies to Facebook, not the UK tabloids.

Again, that's because this is a moral panic and an attack on internet companies, not anything resembling sensible thoughtful policy.

Not surprisingly, the report also uses dodgy "facts" to support the need for such a ridiculous law. In the "foreward" to the report, written by MPs Jeremy Wright and Sajid Javid (a guy who's been spewing nonsense about the internet for years), the following claim is made:

Two thirds of adults in the UK are concerned about content online, and close to half say they have seen hateful content in the past year

The first part is nonsense driven by fear mongering by the media and the likes of Javid. It's meaningless to say people are concerned if the facts don't actually support any reason for them to be concerned. But that second part is even more head-scratching. Graham Smith has asked the government for a source for that stat, but appears to suspect that it comes from a ridiculously misleading Ofcom study where the "harmful" content includes "spam emails," "targeted advertising," "bad language" and "offensive language."

This is pure moral panic. And it will do a few horrible things. First, it will destroy the internet industry in the UK. London had built itself up as a digital hub, but should this law go into effect, that will almost certainly limit any growth potential for the firms there. Second, it will lock in the dominance of Google and Facebook, because who else can deal with this kind of crap. Finally, it will lead to massive censorship. And, basically everyone knows this.

...critics from across the political spectrum have warned the legislation could also threaten freedom of speech. Jim Killock, the executive director of the Open Rights Group, said: “The government’s proposals would create state regulation of the speech of millions of British citizens. We have to expect that the duty of care will end up widely drawn, with serious implications for legal content that is deemed potentially risky, whether it really is nor not.”

Privacy International noted that this plan will "introduce, rather than reduce, "online harms." Index on Censorship seems similarly concerned:

“The implications for ordinary internet users have not been considered. If you introduce a duty of care, especially in combination with the risk of fines, it creates a very strong incentive for online platforms to remove and restrict content, and this is really going to impact on free speech rights and the right to information for millions of ordinary internet users in the UK, and it’s also going to set an example internationally.”

And, of course, as Reason points out, reporters who love to hate the big internet companies seem to be cheering on this censorship plan because they like anything that looks like it "harms" the big internet companies.

This is the same mess we keep seeing over and over again. Lots of people are mad about stuff on the big internet sites... and are responding by attacking those companies (not the cause of the bad stuff on those platforms), and doing so in ways that will lead to massive censorship, less freedom, and which will only serve to lock in the big internet companies, as no one else will be able to deal with any of the proposed regulations.

Filed Under: censorship, duty of care, harmful content, intermediary liability, internet, uk

Legislator Irritated By A Journalist Decides State's Government Should Start Regulating Journalism

from the a-Pravda-of-our-own dept

A Georgia politician -- apparently tired of being questioned by uppity journalists -- has decided the First Amendment shouldn't apply in his state. James Salzer of the Atlanta Journal-Constitution reports the departing state rep, Andy Welch, has lobbed an unconstitutional bomb into the legislature on his way out the door.

A group of House Republican lawmakers filed legislation this week to create a state Journalism Ethics Board to develop “canons of ethics” for journalists in Georgia.

The measure was sponsored by Rep. Andy Welch, R-McDonough, a lawyer who has expressed frustration with what he saw as bias from a TV reporter who asked him questions about legislation recently. He said he thinks the profession could benefit by setting ethical standards for all journalists to follow. Five other Republicans signed on to sponsor the bill.

The bill, which Welch announced along with his resignation from the General Assembly, would create an "independent" ethics board for journalists, which would then decide how journalists should behave. The board -- consisting of a handful of journalists from different fields and a "retired professor of journalism who preferably taught journalism ethics" -- would hand out sanctions, issue opinions, and possibly offer some form of journalism license (which would be voluntary, not mandatory).

The independence of the board would apparently be assured by the requirement that those assembling the board, as well as those sitting on the board, "shall not be employed by any federal government entity, any state government entity, or any local government entity during such member's term of service on the board."

Independent or not, the ethics board would be created by government mandate, which already poses Constitutional issues. It gets worse when other aspects of the proposed law are examined.

Supposedly, accreditation by the ethics board is "voluntary," but the bill [PDF] says it's pretty much mandatory if journalists want to be recognized as journalists by the state.

Develop a voluntary accreditation process in journalism ethics for journalists and news organizations that demonstrate compliance with the highest levels of professionalism and integrity in journalism which shall be approved and issued by the board. News organizations shall be accredited only if all journalists employed by the news organization are accredited…

This suggests state-ordained accreditation may be needed if journalists want to avail themselves of the state's shield law. The shield law is already limited to traditional press outlets: print, television, and radio. This new "voluntary" accreditation program would allow the government to ostracize those already recognized by the shield law, as well as bloggers and independent journalists who won't be part of this "voluntary" scheme.

But there's more in the bill that threatens journalism in the state of Georgia. The law would also force news agencies to hand over a massive amount of information to anyone journalists speak to or interview. Here's the AJC's summary of the legislation's demands:

If approved, the bill would also mandate that anyone interviewed by the media would be able to request and receive copies of photographs and audio and video recordings taken by reporters and photographers. Such copies would have to be provided free of cost, even though state and local governments are allowed to charge the public for copies of any documents it provides.

As is pointed out in the AJC article, this subjects private entities to a more rigorous standard than Georgia's government is willing to apply to itself. The legislature is already exempt from most records requests and the government as a whole has a list of exemptions it can use to keep records out of requesters' hands. There are no exemptions made for journalists, who could face civil penalties and lawsuits if they refuse to turn this information over to interviewees.

The timetable for releasing these records is extremely accelerated, at least when compared to the amount of time government agencies are given to respond to records requests.

The member of the media conducting the interview, the employer of the member of the media conducting the interview, the person making the audio or video recording of the interview or taking photographs in connection with the interview, or the media outlet that runs a story relying on such interview or the audio or video recording of such interview or photographs taken in connection with such interview shall provide a copy of all responsive items in their possession within three business days after receiving the request by sending such items by email or by statutory overnight delivery, at the option of the individual making the request. If no method is stated by the individual making such request, the responsive items shall be delivered by statutory overnight delivery.

The proposal is so awful state First Amendment advocates thought it was an April Fool's joke. But it seems Welch is completely serious. This legislator is so hypersensitive that a little "biased" questioning moved him to violate the US Constitution. Sadly, five other members of his party think this garbage is actually worth their support.

There's very little chance the bill will move forward. Its author is stepping down from the Assembly and it failed to make the cut for the first legislative session of this year. But it's not dead yet. And there's enough anti-journalist animosity out there -- some of it coming from the Commander-in-Chief -- that it may be allowed to survive long enough to earn a veto… or a courtroom challenge.

Filed Under: 1st amendment, andy welch, free speech, georgia, journalism, journalism ethics board, licensing

Former Intelligence Officials Sue The Government Over Its Unconstitutional Pre-Publication Review Process

from the if-nothing-else,-the-Supreme-Court-takes-a-dim-view-of-prior-restraint dept

A handful of former intelligence officials are suing the US government for engaging in prior restraint. It's a novel take on a First Amendment issue -- one that involves a vetting process for books, articles, and op-eds written by these officials containing details of their work in the CIA, Defense Department, and the Office of the Director of National Intelligence.

While the government obviously has some right to ensure classified or sensitive info isn't leaked in post-career memoirs, the plaintiffs argue the vetting process has no guidelines and no firm timetable, which has resulted in planned publications being held up for years with zero explanation. Charlie Savage has more details at the New York Times.

The plaintiffs include Timothy H. Edgar and Richard H. Immerman, former employees of the Office of the Director of National Intelligence; Melvin A. Goodman, a former C.I.A. employee; Anuradha Bhagwati, a former Marine; and Mark Fallon, a former counterterrorism agent at the Naval Criminal Investigative Service.

Mr. Fallon, who retired in 2010, said that he had trouble getting the manuscript for his book, “Unjustifiable Means: The Inside Story of How the C.I.A., Pentagon, and U.S. Government Conspired to Torture,” cleared for publication.

His plan, he said, had been to publish it at the start of the Trump administration. But the government farmed out his book to numerous agencies, and the review process delayed publication more than eight months, to the fall of 2017, disrupting promotional plans.

In Fallon's case, the government demanded redactions of material that had already made its way out to the public domain via congressional hearings and news articles. It wanted 113 pages removed completely, even though the subject matter was already subject of open discussions in Washington, DC.

The redaction process is a mess, according to the lawsuit. Books get shuffled from agency to agency, resulting in a patchwork of internally-inconsistent redaction demands that guts entire sections of the authors' manuscripts. The end result of this process is an obvious negative effect on the free speech of these former officials. The lawsuit [PDF] claims authors have engaged in self-censorship, lost book contracts, and otherwise avoided participating in speech they feel should be protected.

Mr. Fallon’s experiences with prepublication review continue to negatively impact him and deny him the opportunity to contribute to the public debate over breaking news. He would like to publish op-eds in newspapers about current affairs, but his experiences with the review process have discouraged him from trying to do so because of potential delays and unjustified objections by the agency. Mr. Fallon has declined offers to author op-eds and write articles on topics of public concern in response to breaking news because such events require an immediate response in light of the ever-changing news cycle. In addition, Mr. Fallon is unsure how his prepublication review obligations apply in academia—for example, whether he must submit for review edits he makes to the work of other people, or whether an entire piece written by someone else becomes subject to review if he adds one or two sentences. This uncertainty hinders Mr. Fallon’s work and his ability to engage with his colleagues.

That's just Fallon's experience. Others echo the same complaints. Most point out the redactions demanded by government agencies include public domain information and seem to be made with the point of protecting agencies from embarrassment, rather than protecting the nation from unintentional leaks of sensitive info.

The plaintiffs are asking the court to find the process unconstitutional, given its incursion on their free speech rights.

Defendants’ prepublication review regimes violate the First Amendment because they invest executive officers with sweeping discretion to suppress speech and fail to include procedural safeguards designed to avoid the dangers of a censorship system.

Defendants’ prepublication review regimes are void for vagueness under the First and Fifth Amendments because they fail to provide former government employees with fair notice of what they must submit for prepublication review and of what they can and cannot publish, and because they invite arbitrary and discriminatory enforcement.

It will be a tough fight. The government likes to engage in opacity and avoid embarrassment. Both of these are key factors in its vague, lengthy pre-publication review process. It won't want to give those up and it will have ton of national security arguments to make on its own behalf -- few of which tend to get challenged by federal courts.

Filed Under: 1st amendment, anuradha bhagwati, cia, defense department, free speech, mark fallon, melvin goodman, odni, pre-publication review, richard immerman, timothy edgar