The American Bear


A New Media Shield Law Would Only Shield Corporate Media | VICE

[…] In May, a Senate bill titled the “Free Flow of Information Act Act of 2013” (S. 987) was introduced by Chuck Schumer and Lindsey Graham. The bill was originally introduced in 2007 (S. 2035), and then again in 2009 (S. 448), but either died in committee or failed a cloture vote. The bill is supported by Sen. Dianne Feinstein, chairman of the Senate Intelligence Committee, but only if it includes specific language that excludes individuals she claims, “are not reporters at all.” Schumer echoed Feinstein’s concerns, specifically calling out WikiLeaks, saying, “We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that.” At the time of writing, the “Free Flow of Information Act” is schedule for more debate before the Senate Judiciary Committee on September 12.

This bill ironically purports to “maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.” The proposed law does not describe a “journalist” by that name, but instead a “covered person.” It defines this individual as someone who “regularly” reports on the news and excludes self-employed journalists. The House version of this bill (H.R. 1962) includes precarious language, solely defining this “covered person” as someone who reports for a news organization for “financial gain or livelihood.” The bill introduced by Representative Ted Poe (R-TX) suggests that the legal protections, already afforded to every US citizen under the Constitution, will only extend to an individual reporting the news for money.

It’s common practice for politicians to color coat the purpose behind a controversial piece of legislation in an attempt to disguise it with a friendlier title for their colleagues and the general public. The current “Free Flow of Information Act” under discussion does nothing to support the free flow of information. In practice, this law would endanger internet bloggers, freelance writers, and citizen journalists who are guilty of nothing more than performing acts of journalism. Essentially, members of Congress have proposed a “media shield law” that paradoxically has no hope of shielding the media—unless of course the reporter in question happens to work for an establishment like CNN or the New York Times.

The US Constitution does not mince words on this subject: Congress has no authority to abridge the freedom of the press. Most importantly, many of today’s respected citizen journalists represent more closely the kind of press originally referred to in that revered document, and certainly more so than anyone occupying a desk at 30 Rockefeller Plaza.

Some would argue that it’s essential for breaking news to be handled by so-called professionals in the modern era, a period of heightened national security, that in a time when government whistleblowers are disclosing classified documents claimed to damage US foreign relations and potentially endanger the lives of American troops abroad, no one person should have the right to report the facts of these delicate issues. While there should always be a consistent effort to verify information and weigh its value to the public against the cost of its disclosure, sometimes the close relationship that professional news companies have with the US government interferes with what’s best for the American public.

By no means was I treated as a hero when I first came forward. I was indicted and spent two years in court. But in those days, journalists were not turning on journalists. With Snowden in particular, you have a split between truly independent journalists and those who are tools — and I mean that in every sense of the term — of the government. Toobin and Grunwald are doing the work of the government to maintain relationships and access. Daniel Ellsberg (via azspot)

The Snowden Effect: definition and examples | Jay Rosen - Pressthink

The Snowden effect, a definition:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.

Meaning: there’s what Snowden himself revealed by releasing secrets and talking to the press. But beyond this, there is what he set in motion by taking that action. Congress and other governments begin talking in public about things they had previously kept hidden. Companies have to explain some of their dealings with the state. Journalists who were not a party to the transaction with Snowden start digging and adding background. Debates spring to life that had been necessary but missing before the leaks. The result is that we know much more about the surveillance state than we did before. Some of the opacity around it lifts. This is the Snowden effect.

It is good for public knowledge. And public knowledge is supposed to be what a free press and open debate are all about.

Notes, links and examples:

1. As reported yesterday: (July 4)

Days after President François Hollande sternly told the United States to stop spying on its allies, the newspaper Le Monde disclosed on Thursday that France has its own large program of data collection, which sweeps up nearly all the data transmissions, including telephone calls, e-mails and social media activity, that come in and out of France. (Le Monde.)

So the Snowden effect is international. Canada, for example.

2. On July 3, Reuters reported on the “long history of close cooperation between technology companies and the intelligence community.”

Former U.S. officials and intelligence sources say the collaboration between the tech industry and spy agencies is both broader and deeper than most people realize, dating back to the formative years of Silicon Valley itself.

A similar story ran in the New York Times on June 19. It told of “the increasingly deep connections between Silicon Valley and the [NSA] and the degree to which they are now in the same business.”

3. In a superb story by four reporters on June 15, the Associated Press expanded the frame:

The revelation of Prism this month by the Washington Post and Guardian newspapers has touched off the latest round in a decade-long debate over what limits to impose on government eavesdropping, which the Obama administration says is essential to keep the nation safe.

But interviews with more than a dozen current and former government and technology officials and outside experts show that, while Prism has attracted the recent attention, the program actually is a relatively small part of a much more expansive and intrusive eavesdropping effort.

4. Expanding the frame in a different way, the McClatchy Washington bureau reported on the Obama Administration’s extremely aggressive crackdown on leaks: (June 20)

President Barack Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide.

5. On June 15 Bloomberg reported that “thousands of technology, finance and manufacturing companies are working closely with U.S. national security agencies, providing sensitive information and in return receiving benefits that include access to classified intelligence.”

These programs, whose participants are known as trusted partners, extend far beyond what was revealed by Edward Snowden, a computer technician who did work for the National Security Agency.

6. Two days ago, a report in the New York Times explained how Senators Ron Wyden and Mark Udall are “trying to force intelligence officials to provide answers for the public record” about matters already familiar to them from secret briefings given to Congress. The key phrase is “answers for the public record.” That’s the core of the Snowden effect.

7. On June 25, the National Security Agency had to take down two fact sheets it had posted online after Wyden and Udall complained that they contained misinformation. The documents were themselves an example of the Snowden effect, as Politico reported:

The documents, still available here, were published in the wake of revelations about the extent of the NSA’s surveillance programs. They sought to highlight the safeguards the NSA uses to make sure American communications aren’t caught up in its surveillance — or if they are, what the NSA does to remove identifying information about U.S. citizens.

In other words, the NSA – often called the most secretive agency in the government – felt it had to explain itself. This is good for public knowledge. Two U.S. Senators then fact checked the NSA, which is even better.

8. Jack Shafer of Reuters predicted the Snowden effect in his June 8 column. “This will now fuel new cycles of reporting, leaks and scoops — and another, and another — as new sources are cultivated and reportorial scraps gathering mold in journalists’ notebooks gain new relevance and help break stories.” He was right.

9. Did you know that the United States Postal Service “computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year?” I did not. The New York Times reported on it July 3rd. As Ethan Zuckerman notes, the Smoking Gun website had the story on June 7 but few saw it. The Snowden effect works like that. It widens the circle of people who know, even if the knowledge had been available before.

10. The Snowden effect is far more important than the Snowdon saga, meaning: the story of what happens to him as the United States pursues his capture and arrest, plus what comes out about his background and motivations. But I would not call his personal story a “distraction” from the real story. That’s not right. Who he is, what kind of access he had, why he did what he did, and even the arguments about whether he’s a disloyal creep or a profile in courage are inescapably part of the larger story and the public debate it has triggered. (Read Matt Cooper of National Journal on this issue.) You can’t wish for more public attention to the surveillance state and then scoff at one of the means by which people come to the larger story, which is his story. But I repeat what I said: the Snowden effect is ultimately more important than the Snowdon saga.

A Statement on Rep. Peter King's Call for the Prosecution of Journalists | Freedom of the Press Foundation

[On Tuesday] night, Rep. Peter King (R-NY) publicly called for the prosecution of Guardian journalist Glenn Greenwald for his recent reports showing that the NSA has been secretly collecting private data on millions of Americans. Rep. King’s appalling call for legal action against a reporter for doing his job is an affront to all journalists, and indeed, the First Amendment itself. Freedom of the Press Foundation condemns Rep. King’s comments in the harshest terms.

Rep. King has a long and unfortunate history of calling for the prosecution of journalists when media organizations print something he doesn’t like. Unfortunately for him, that is not how the First Amendment works.

Mr. Greenwald and Laura Poitras—both of whom are founding board members of this organization—as well as the many other journalists reporting on the NSA revelations in the past week, are following in the finest traditions of press freedom that this country was founded on.

The freedom of the press clause in the First Amendment provides wide latitude for journalists to publish truthful information in the public interest, even when—and in many cases, especially when—the government considers that information “secret.” This has been the established law of the land for decades, if not centuries. And any attempt to prosecute journalists for doing their job should be met with the appropriate scorn.

Rep. King has cited unspecified “national security” concerns for his suggestion that we upend the First Amendment. As Supreme Court Justice Hugo Black once wrote, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”

There is no better example of Justice Black’s statement than today comments by Mr. King, who cited no specific example as to how Mr. Greenwald’s reporting has harmed the country in any way. Indeed, former counterterrorism czar Richard Clarke wrote today that claims the recent NSA stories damaged national security are “laughable.” The only thing these reports reveal is what the government has been doing to millions of innocent Americans, in complete secrecy, for years.

[As] Harvard Law Professor Yochai Benkler noted recently in the New Republic, when the judge presiding over Manning’s prosecution asked military lawyers if they would ‘have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?,’ the prosecutor answered simply: ‘Yes, ma’am’. It has long been clear that this WikiLeaks-as-criminals theory could and would be used to criminalize establishment media outlets which reported on that which the US government wanted concealed. Now we know that the DOJ is doing exactly that: applying this theory to criminalize the acts of journalists who report on what the US government does in secret, even though there is no law that makes such reporting illegal and the First Amendment protects such conduct. Essentially accusing James Rosen of being an unindicted co-conspriator in these alleged crimes is a major escalation of the Obama DOJ’s already dangerous attacks on press freedom. … It is virtually impossible at this point to overstate the threat posed by the Obama DOJ to press freedoms.

Obama DOJ formally accuses journalist in leak case of committing crimes | Glenn Greenwald

… Back in 2006, Bush Attorney General Alberto Gonzales triggered a major controversy when he said that the New York Times could be prosecuted for having revealed the Top Secret information that the NSA was eavesdropping on the communications of Americans without warrants. That was at the same time that right-wing demagogues such Bill Bennett were calling for the prosecution of the NYT reporters who reported on the NSA program, as well as the Washington Post’s Dana Priest for having exposed the CIA black site network.

But despite those public threats, the Bush DOJ never went so far as to formally accuse journalists in court filings of committing crimes for reporting on classified information. Now the Obama DOJ has.

… If even the most protected journalists - those who work for the largest media outlets - are being targeted in this way, and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.

There is simply no defense for this behavior. Obama defenders such as Andrew Sullivan claim that this is all more complicated than media outrage suggests because of a necessary “trade-off” between press freedoms and security. So do Obama defenders believe that George Bush and Richard Nixon - who never prosecuted leakers like this or formally accused journalists of being criminals for reporting classified information - were excessively protective of press freedoms and insufficiently devoted to safeguarding secrecy? To ask that question is to mock it. Obama has gone so far beyond what every recent prior president has done in bolstering secrecy and criminalizing whistleblowing and leaks.

Greenwald is writing in response to this report from The Washington Post.

A rare peek into a Justice Department leak probe | The Washington Post

Another serious overreach and attack on press freedom from Obama and his DoJ:

When the Justice Department began investigating possible leaks of classified information about North Korea in 2009, investigators did more than obtain telephone records of a working journalist suspected of receiving the secret material.

They used security badge access records to track the reporter’s comings and goings from the State Department, according to a newly obtained court affidavit. They traced the timing of his calls with a State Department security adviser suspected of sharing the classified report. They obtained a search warrant for the reporter’s personal e-mails.

The case of Stephen Jin-Woo Kim, the government adviser, and James Rosen, the chief Washington correspondent for Fox News, bears striking similarities to a sweeping leaks investigation disclosed last week in which federal investigators obtained records over two months of more than 20 telephone lines assigned to the Associated Press.

At a time when President Obama’s administration is under renewed scrutiny for an unprecedented number of leak investigations, the Kim case provides a rare glimpse into the inner workings of one such probe.

Court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist — and raise the question of how often journalists have been investigated as closely as Rosen was in 2010. The case also raises new concerns among critics of government secrecy about the possible stifling effect of these investigations on a critical element of press freedom: the exchange of information between reporters and their sources.

“Search warrants like these have a severe chilling effect on the free flow of important information to the public,” said First Amendment lawyer Charles Tobin, who has represented the Associated Press, but not in the current case. “That’s a very dangerous road to go down.”

And here’s a first (and incredibly dangerous precedent) - accusing Rosen of committing a crime (co-conspirator) for basic reporting:

[…] Court documents show abundant evidence gathered from Kim’s office computer and phone records, but investigators said they needed to go a step further to build their case, seizing two days’ worth of Rosen’s personal e-mails — and all of his e-mail exchanges with Kim.

Privacy protections limit searching or seizing a reporter’s work, but not when there is evidence that the journalist broke the law against unauthorized leaks. A federal judge signed off on the search warrant — agreeing that there was probable cause that Rosen was a co-conspirator.

Machen’s office said in a statement that it is limited in commenting on an open case, but that the government “exhausted all reasonable non-media alternatives for collecting the evidence” before seeking a search warrant.

However, it remains an open question whether it’s ever illegal, given the First Amendment’s protection of press freedom, for a reporter to solicit information. No reporter, including Rosen, has been prosecuted for doing so.

Goodale: Pentagon Papers have lessons for AP case | Committee to Protect Journalists

[James] Goodale, who was general counsel for the Times during the Pentagon Papers and the architect of the paper’s legal defense—and is a member of CPJ’s board of directors—was quick to relate the current scandal to the precedent-setting case. “Notice [Holder] didn’t tell you why it was the worst national security leak, he didn’t tell you what [the damage was]…The lesson from the Pentagon Papers is: Don’t trust the government when it claims national security” concerns, Goodale said. He came to this conclusion in the process of researching his book, for which he poured over formerly classified documents from the case. “I wanted to give the government the benefit of the doubt, but about three quarters of the way through I realized it was totally nonsense, they never had a damn thing,” Goodale said. Four decades later, he noted, no one has ever shown damage to U.S. national security caused by publication of the papers. Reporters today may do well to consider this point as they debate what, if any, actual harm was incurred by the AP article that revealed a secret CIA operation and foiled terrorist plot in Yemen and is at the heart of the subpoena fracas.

While Goodale could not have anticipated the timely revelation of the secret AP subpoena, he clearly did have one current issue in mind when he decided to write his account: the ongoing saga of WikiLeaks and its embattled and polemic founder, Julian Assange. While acknowledging that many traditional journalists find Assange to be a baffling character, Goodale said, “If you’re angry at Assange for publishing the information, you should be mad at The New York Times too. Assange is [reporter] Neil Sheehan and The New York Times” in the Pentagon Papers case, he added. “Assange is the publisher, so there shouldn’t be any question we are dealing with a First Amendment issue. If we don’t recognize that in the digital age, we are in a lot of trouble.”

Of course, there are notable differences between Assange and the Times, whose own partnership in publishing the first set of leaked documents eventually publicly broke down. Assange received widespread scorn from the journalism community for WikiLeaks’ later disclosure of thousands of classified, unredacted U.S. diplomatic cables that potentially put people’s lives at risk. (CPJ, for example, documented at least one Ethiopian journalist who was forced to flee his country after he was cited in one of the cables.) Nonetheless, Goodale noted that the measure of whether publication of leaked material meets journalistic quality and ethical standards does not affect whether it qualifies for First Amendment protection. In other words, while WikiLeaks may not have taken care to redact or contextualize the data as the Times did, professional failures “do not [constitute] a legal distinction for the First Amendment.” Moreover, Goodale emphasized, journalists must be aware that the precedent of prosecuting WikiLeaks, essentially criminalizing the newsgathering process, would put the whole profession at risk.

Goodale has received a lot of press in recent days for stating that Barack Obama is on a path to becoming “worse for press freedom than [former U.S. President Richard] Nixon.” That’s the kind of headline that would make any president shudder, and in a sign the White House crisis-control team is on full alert, Obama unexpectedly called this week for a renewed push to pass the long-dormant federal shield law that would enshrine the reporter’s privilege to protect confidential sources. While many in the room with Goodale Thursday welcomed the move as an added protection for the press—most notably Judith Miller, who famously went to jail to uphold that principle—the bill comes with several controversial elements, including a national security exemption and the need to legally define who is a journalist in order to be effective.

Whatever happens with the legislation, Obama’s announcement was characteristic of the schizophrenic nature of the administration’s record on whistleblowers and leaks. The low level of tolerance for leaked information under Obama, and post 9-11 more generally, led Miller to question whether Goodale could have won the Pentagon Papers case in the 21st century. (After doing a numbers analysis of the current makeup of the Supreme Court, Goodale’s response was an emphatic “Yes.”)

As pointed out by CPJ Executive Director Joel Simon, the shield law and leak cases highlight that the Pentagon Papers case settled the issue of prior restraint (which has become largely irrelevant and unenforceable in the Internet era), but the debate on classified documents is unresolved. Decades after Goodale first articulated to corporate media lawyers the feasibility and importance of the First Amendment as a legal defense, he and his book are a handy and relevant reference for a new generation of attorneys tasked with protecting the press.

Hear Ye, Future Deep Throats: This Is How to Leak to the Press | Nicholas Weaver

We now live in a world where public servants informing the public about government behavior or wrongdoing must practice the tradecraft of drug dealers and spies. Otherwise, these informants could get caught in the web of administrations that view George Orwell’s 1984 as an operations manual.

With the recent revelation that the Department of Justice under the Obama administration secretly obtained phone records for Associated Press journalists — and previous subpoenas by the Bush administration targeting the Washington Post and New York Times — it is clear that whether Democrat or Republican, we now live in a surveillance dystopia beyond Orwell’s Big Brother vision. Even privately collected data isn’t immune, and some highly sensitive data is particularly vulnerable thanks to the Third Party Doctrine.

So how can one safely leak information to the press?

Well, it’s hard. Even the head of the CIA can’t email his mistress without being identified by the FBI. With a simple subpoena or warrant, the FBI can obtain historical calling information (and with cellphones, location history); email messages (and records revealing the pattern of where and when the target accessed these accounts); internet activity; and much more.

Since even separate, innocuous contacts between a reporter and source may be sufficient for the FBI to establish a relationship in its investigations — and who knows what kind of leak triggers a crackdown — here’s my guide for potential leakers. [continue]

Both [AG Eric] Holder and [Deputy AG James] Cole declared their commitment — and that of President Obama — to press freedoms. Mr. Cole said the administration does not “take lightly” such secretive trolling through media records. We are not convinced. For more than 30 years, the news media and the government have used a well-honed system to balance the government’s need to pursue criminals or national security breaches with the media’s constitutional right to inform the public. This action against The A.P., as the Reporters Committee for Freedom of the Press outlined in a letter to Mr. Holder, “calls into question the very integrity” of the administration’s policy toward the press.

NYT Editorial Board, Spying on The Associated Press

Mr. Holder said the leak under scrutiny, believed to be about the foiling of a terrorist plot in Yemen a year ago, “put the American people at risk,” although he did not say how, and the records sweep went far beyond any one news article.

… The Obama administration has indicted six current and former officials under the Espionage Act, which had previously been used only three times since it was enacted in 1917. One, a former C.I.A. officer, pleaded guilty under another law for revealing the name of an agent who participated in the torture of a terrorist suspect. Meanwhile, President Obama decided not to investigate, much less prosecute, anyone who actually did the torturing.

The Justice Department is pursuing at least two major press investigations, including one believed to be focused on David Sanger’s reporting in a book and in The Times on an American-Israeli effort to sabotage Iranian nuclear works. These tactics will not scare us off, or The A.P., but they could reveal sources on other stories and frighten confidential contacts vital to coverage of government.

The Perils of Wonkery | Peter Frase

… [The] wonk … needs to appear to be deeply knowledgeable about a wide range of obscure and technical subjects. But this entails concealing both one’s ideological biases and one’s substantive lack of knowledge, and relying on the borrowed prestige of academics and experts. In doing so, the wonk becomes the conduit for the experts, or more exactly a crucial means by which their authority is reproduced. The wonk takes the expert’s pronouncements at face value because they are serious, mainstream figures, and the fact that journalists do this reinforces their seriousness and mainstream-ness. One could hardly devise a better way of policing ideological boundaries and maintaining the illusion that the ruling ideology is merely bi-partisan common sense.

The unraveling of the Reinhart-Rogoff “fact” about debt and growth was only unusual because the supporting research was unusually sloppy. In that sense, critics are correct that there’s nothing particularly special about this one case. But the very absurdity of the episode makes it useful as a means of unmasking the entire corrupt enterprise of policy wonk journalism and its “just the facts, ma’am” pretensions. [++]

How Not to Apologize for Supporting an Unnecessary War | Jordan Bloom

[N]one of [these non-apology apologies] bother me quite as much as Ezra Klein’s, who calls his support for the war an “analytical failure”:

… at the core of my support for the war was an analytical failure I think about often: Rather than looking at the war that was actually being sold, I’d invented my own Iraq war to support — an Iraq war with different aims, promoted by different people, conceptualized in a different way and bearing little resemblance to the project proposed by the Bush administration. In particular, I supported Kenneth Pollack’s Iraq war.

Take it away, Jacob Bacharach:

No. The core of your support for the war was a moral failure. A guy who murders his wife doesn’t get to hide behind a claim about bad analysis after he discovers that she wasn’t in fact screwing the mailman. Oh, you invented an imaginary war to support? That isn’t bad analysis. It’s a crime.

You will note that the commentariat is currently full of decennial mea culpas, and what that tells you is that people like Ezra Klein who skipped the protests in order to type in favor of the death of thousands have been richly rewarded with careers in the popular media. This makes their post-hoc apologies completely of a kind with their antebellum cheerleading: it entails no personal risk and carries with it the prospect of professional advancement.

There’s something so monstrously neutral, so Ezra Klein about the way he frames his apology–not my fault! Just bad data!–that reveals the folly of what Jay Rosen, Conor Friedersdorf, and others have called the “View from Nowhere” posture of objectivity. To say “It wasn’t worth doing precisely because the odds were high that we couldn’t do it ‘right’” assumes it’s actually a matter of odds, not morality or Constitutional prerogatives. Can Klein answer what odds would have been good enough to justify the death of thousands of American soldiers and tens of thousands of Iraqi civilians in a war in which the United States only had the faintest national interest? One shouldn’t fault him for his view on the war as a college student, and it’s too much to ask for someone on the Washington Post’s masthead to ever accept noninterventionist precepts. But after being deceived, is a little skepticism of either the information the government releases to the public or the projection of American power abroad too much to ask in view of his mistake?

The government has insulated its conduct from what are supposed to be the legitimate means of accountability and transparency—judicial proceedings, media coverage, FOIA requests—and has really erected this impenetrable wall of secrecy, using what are supposed to be the institutions designed to prevent that. That is what makes whistleblowing all the more imperative. It really is the only remaining avenue that we have to learn about what the government is doing. And that is why the government is so intent on waging this war against whistleblowers, because it’s the only thing left that shines light on what they were doing. And those who want to stigmatize whistleblowing as illegal would have a much better case if there were legitimate institutions that were functioning that allow the kind of transparency that we’re supposed to have. But those have been all shut down, which is what makes whistleblowing all the more imperative and the war on whistleblowing all the more odious. Glenn Greenwald on Bradley Manning: Prosecutor Overreach Could Turn All Whistleblowing into Treason