A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.

A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:

5:15 p.m.: This story has been updated to remove references from the filed plea agreement, which was ordered sealed by a judge but publicly available Friday on the federal court’s online document database. The changes were made to comply with an order issued Saturday by a U.S. federal judge. The Times plans to challenge the order.

The information Balian's lawyer wanted removed lives on at the Internet Archive, where an unedited version of the post still resides. The effectiveness of this order may have blunted by the internet's ability to remember things people want forgotten, but the order is still an abuse of judicial power. This is the bulk of the information targeted by the court order.

John Saro Balian, 45, pleaded guilty to one count each of soliciting a bribe, obstruction of justice and making false statements to federal investigators as part of a plea agreement he reached with prosecutors. The document was ordered to be filed under seal but appeared on PACER, a public online database for court documents.

According to the agreement, filed in U.S. District Court, Balian agreed to cooperate with federal authorities by responding truthfully and completely in interviews and court proceedings. He is scheduled to be sentenced in September, when prosecutors are expected to recommend a reduced sentence.

As Ken White points out in his post on the subject, the granted injunction [PDF] appears to have been approved in whole by the presiding judge, who only added a couple of things to the proposed order before signing off on this violation of the First Amendment.

[B]ased on an emergency request from the defendant, with no prior opportunity to be heard, a federal judge ordered a major newspaper (1) not to write about the details of a federal plea agreement it had obtained lawfully, (2) not to write anything that "relies on, or is derived in any way" from the plea agreement, an incredibly broad and vague term that is extraordinarily chilling to speech about the case, (3) to take down any story it's already published, and (4) told the paper they can see the order, but not the application stating the legal and factual grounds for the order.

The LA Times is challenging the order, but it has to do it without access to all the facts. The application for the order was filed under seal, so it's likely the first time the paper will see what it's arguing against will be when it shows up in court to argue against the injunction.

Beyond the obvious First Amendment implications of granting such a broad order over information legally obtained by the LA Times, there's the question about the purpose it's supposed to serve. What's been "deleted" reveals little that probably couldn't be inferred by astute readers. Certainly the Times' article does provide more details than it would have without a copy of the plea agreement, but its other coverage -- along with the docket's publicly-available documents -- already strongly hinted that Balian had entered a plea agreement with the government.

The plea agreement isn't necessary to show his cooperation; reasonable observers can infer it as a strong likelihood. The plea agreement may also have included factual details about what Balian admitted to doing — prosecutors typically get cooperators to agree to a detailed set of facts to "lock them in" to a story. But that's the government's concern, not Balian's.

This sloppy decision by a federal judge now requires the LA Times to spend time and money overturning a clearly unconstitutional gag order. It's not a party to this case but has been put in the position of having to interject. Sure, it doesn't have to challenge this injunction, but if you don't stick up for your rights -- especially in an industry heavily-reliant on the First Amendment -- you're just ceding ground and signalling to others you're willing to delete information anytime an article's subject gets angry. The Times' appeal of the injunction should be successful but the greater point remains that it never should have had to do this in the first place.

As we've pointed out any number of times over the past few years, cord-cutting is a very real thing and represents a threat to the cable television industry as it exists today. One of the last threads from which that industry largely hangs is professional sports broadcasts, with cable network providers having traditionally locked up pro and college sports broadcast rights in long-term exclusive deals. That has slowly begun to change, as the leagues of the world have finally gotten on board with streaming providers big and small, connected to the cable industry or not. If this is adopted en masse, it puts disruptive change for cable on the horizon.

But progress isn't linear and one of the threats to keeping this train on its tracks is the quality of the experience for users that dive into these sports streaming options. Especially early on in this kind of change, providers getting things right is extremely important, as reputations and public perception of the viability of sports streaming are more than somewhat on the line. And YouTube recently botched its broadcast of the World Cup match between England and Croatia.

In the middle of Wednesday's World Cup semifinal match between England and Croatia, YouTube's live TV service suffered an unfortunately-timed outage (not unlike ones we've seen from Sling or Hulu). Naturally, it enraged YouTube TV subscribers who had picked up the service specifically to catch live broadcasts like that game, and now it's offering an apology in the form of a credit.

There are several unfortunate factors at play for why this specific screw-up is worse for the reputation of sports streaming than it might have been otherwise. We can start with the most obvious factor: this is YouTube we're talking about. Look, there are plenty of good streaming service providers out there, but YouTube is the king of them, by reputation if not by fact. Having that name tied to this screw up is likely to register with the public as an indication that streaming for sports may not be ready for prime time.

The second factor: this was the World Cup we're talking about. The popularity of this event, and its related viewership, is immense. The public knows that. Any streaming service for World Cup broadcasts has to know that its service is going to be heavily trafficked and ought to have its shit in order to accommodate the event's popularity. Heavy viewerships shouldn't be a surprise and, whatever the actual cause of YouTube's interruption, it will be assumed by most that viewership load played a factor.

Now, as the post notes, streaming interruptions have happened before and they will happen again. Much of the reaction to what I outlined above will be at least in part unfair. But if you're rooting for sports streaming to erupt in popularity, or if you're a streaming provider trying to get more leagues on board, this kind of a screw up was about as bad in terms of timing as it gets.

Having just written about a good New York ruling concerning third-party subpoenas and the ability to protect free speech, now we have to write about some less good news: the recent decision by New York's highest court undermining the protection afforded by the state's shield law.

Shield laws are critical to preserving a free and independent press because they enable journalists to resist testifying about the non-public aspects of their reporting, or having to turn over their notes and related work product. This ability to resist is what empowers them to promise anonymity to sources, which often can be the only way for news the public needs to know about to come to light. If journalists couldn't resist, or had to risk going to jail in order to try, it would inhibit their reporting and leave the public less able to learn about matters of public concern. Yet unfortunately this decision by the New York Court of Appeals invites just such a result by interfering with journalists' ability to avail themselves of the protection ostensibly afforded by the state shield law. (Note: New York confusingly labels its lowest court the Supreme Court. The highest court is instead known as the Court of Appeals. The Appellate Division is in the middle.)

As frequently happens with tough cases involving important First Amendment interests, the underlying facts of this case are awful: Conrado Juarez has been charged with the gruesome 1991 murder of his four year-old niece. The case remained unsolved until DNA evidence made him a suspect. After fourteen hours of interrogation, he purportedly confessed. He now claims that the confession was coerced, and prosecutors want to use the notes and testimony of New York Times reporter Frances Robles, who had interviewed him, to challenge his claims. The trial court originally refused her motion to quash the subpoena demanding she provide the notes and testimony, but the Appellate Division overruled that decision and quashed it. Only now the Court of Appeals has overturned the Appellate Division's ruling, thus making the subpoena once again enforceable.

In overturning the Appellate Division's decision the Court of Appeals found that the reporter had no right to appeal the original denial of her motion to quash the subpoena by the trial court. If she had no right to appeal the trial court's decision, then the Appellate Division had no ability to reverse it. [p. 2] But even if this Court of Appeals finding that she had no right of appeal were truly consistent with chapter and verse of New York appellate procedure (the dissent believes it isn't [Rivera dissent p. 8-9]), it's still a remarkably formalistic conclusion that gives short shrift to the significant substantive rights at stake.

Formalism isn't of course inherently bad; careful adherence to procedural rules can sometimes help protect substantive rights better than ad hoc short cuts can. These rules exist in order to further the administration of justice, and the Court of Appeals itself fairly makes this point: by limiting the ability to appeal in criminal matters, it keeps the administration of justice from being bogged down unfairly through appellate gamesmanship. [p. 2]

But justice isn't furthered by being a slave to interpretations of procedural rules so at odds with why we have the rules in the first place. Or, as in this case, so indifferent to the rights of those these rules were never intended to govern – namely, the third parties affected here and whose interests the Court of Appeals seems so hostile to [p. 4-5]. Or so arbitrary in their application and effect.

That arbitrariness is well on display here. First, the no-appeal rule the Court cites only applies to criminal cases, not civil ones, [p. 2], which suggests that if this case had not involved a prosecution, the reporter apparently could still have appealed a lower court's refusal to quash a subpoena without problem. Next, the rule limiting appeals does not apply to subpoenas issued as part of investigations of criminal matters. [p. 3] So, if they hadn't already begun to prosecute the defendant, the reporter also likely could have appealed a refusal to quash a subpoena.

In addition, if this case had originally broken the other way, and the trial court had originally quashed the subpoena, then per this rule, if applied consistently, it would have been the government who could not have been able to appeal that ruling. Obviously this particular result would be protective of journalists, but for the no-appeal rule to be applied this way it still makes journalists' protection entirely contingent on the judgment of trial courts. And that's a problem, because trial courts are not infallible. If they were, then there would be no need to have any appeals courts at all. We have these courts because sometimes lower courts get things wrong, as this one did here, and there needs to be some way to set things right when they do. But what the Court of Appeals is saying in this case is that when it comes to subpoenaing journalists (something that the NY legislature passed the shield law in order to prevent), if this subpoenaing happens as part of a criminal trial, then journalists will be entirely dependent on that trial court getting the decision whether to quash it perfectly correct in the first instance, because its decision on the matter will not be one that can ever be reviewed.

For shield law protection to be meaningful it needs to have adequate rights of appeal baked into it, in all situations where journalists may need to assert it. True, in the context of criminal trials journalists might be able to recover the right to appeal as part of their challenge of a contempt order seeking to punish their refusal to comply with a subpoena. But if journalists are forced to risk jail to assert their shield law protection effectively, then the protection the shield law affords is hardly effective.

The Court of Appeals seems to think that a legislative fix is the way to go to make it explicit that there is always a right of appeal. [p. 5] And there may also be the possibility of challenging a subpoena as part of an "Article 78" civil proceeding, although, as the dissent notes, forcing journalists to go this route does nothing to advance the speedy-trial interests the majority's "no appeal" rule is supposed to advance (nor is it clear that an Article 78 proceeding would necessarily be an effective option).

In any case, the alternatives available to a nonparty seeking some type of appellate review of the denial of a motion to quash will likely result in even greater delay of the criminal proceeding than would a direct appeal of a quashal motion. The two avenues left open to a nonparty to contest a denial would be a CPLR Article 78 action in the nature of prohibition or for the nonparty to simply fail to comply with the subpoena and seek appellate review of the subsequent order of contempt. In either case, if the prosecutor or defendant needed the nonparty’s evidence, they would wait until the resolution of the collateral proceedings. [Rivera dissent p. 11]

But the problem is that journalists should not be in the situation where their right and ability to resist subpoenas the shield law is supposed to protect them from are so uncertain. In order to be consistent with the First Amendment and similar principles enshrined in the New York Constitution, principles that the shield law seeks to vindicate, the right to appeal any trial court denial should be implicit, since the effect of barring these appeals so significantly impinges on the free press the public needs.

Sadly, however, this sort of decision – procedural formalism over the effective preservation of substantive speech rights – may be par for the course for the New York Court of Appeals these days. This case is not the first one where the Court of Appeals has reached a conclusion that puts substantive speech rights at risk because of the way it has limited the appellate rights of third parties. In fact, it justified this shield law decision by citing another case it decided last year where Facebook, as a third party, had tried to quash 381 Stored Communications Act "warrants" seeking information about its speakers. In that case, Facebook had been similarly denied a right to appeal the denial of its motion to quash, and for generally similar reasons as those cited in this case now.

We've written before about troubling effects that arise when shield law jurisprudence collides with attempts by platforms to protect the anonymity of their users. The questions of whether journalists can resist subpoenas and whether platforms also can are separate and distinct, and, as such, are often best resolved according to separate and distinct reasoning. After all, the right to a free press and the right to speak anonymously often affect liberty interests in different ways. Plus, as we saw in the Glassdoor case, when both the district court and the Ninth Circuit unhelpfully conflated the two sets of questions and used the reasoning for journalist subpoenas to drive its analysis of platform subpoenas, it used the weak reasoning in the former context to undermine the constitutional protection of anonymous speech in the latter. And in this case now we see further problems with conflating these issues, only this time in reverse, with the earlier Facebook case about platform subpoenas and anonymous speech now negatively shaping this case about journalist subpoenas and the right to a free press.

On the other hand, both anonymous speech and free press cases affect the interests of third parties and both vindicate important First Amendment rights upon which public discourse depends. Both therefore deserve to have had these critical rights treated with more care than the New York high court lately has afforded them.

There are a few recent cases to note out of New York that address speech and subpoenas on third parties. This first post is about a good one, and soon we'll have another... less good one. In Amelius v. Grand Imperial LLC a court in New York has recently reaffirmed that a New York-issued subpoena is only enforceable on an Internet platform if the New York courts have jurisdiction over the platform. Furthermore, relying on a 2014 US Supreme Court ruling, Daimler AG v. Bauman, the court in Amelius concluded that having merely registered to do business as an out-of-state company is not enough to give New York jurisdiction over platform companies with no other connection to the state than that, nor is their having information that might be relevant to a New York case. Instead the platform would either need to be incorporated or headquartered in New York for its courts to have jurisdiction over them.

Which does not mean that out-of-state platforms like Yelp (the platform at issue in this case) cannot be subpoenaed to supply information relevant to a New York case. What it does mean, however, is that the New York subpoena would need to be "domesticated" in the platform's home jurisdiction so that its own local courts would be able to enforce it. It is not necessarily hard to do this: for instance, in California, pretty much all that needs to happen is for a California court clerk, or even just a licensed California attorney, to add a California subpoena form to the out-of-state subpoena for it to become an enforceable California subpoena.

But what's good about this arrangement is that platforms can have some control over what laws will govern the subpoenas propounded against them and anticipate which courts will be able to compel them to act. In fact, they can choose to base themselves in states that offer the best laws and procedural rules most protective to them and their users' speech, because not all states do so equivalently. For instance, the test for whether a subpoena can be allowed to unmask an anonymous speaker in California is the Krisnky test (which requires the pleading to make a prima facie case against the speaker), but in other states the test is either the Dendrite test, the Cahill test, the "good faith" test (as was the case in the Virginia Hadeed Carpet case, which raised similar jurisdictional issues as this one), or no test at all (thus rendering all the subpoenas potentially enforceable, no matter what the effect on speech). These tests obviously vary greatly in the protection they afford to anonymous speakers.

California also includes mandatory fee-shifting to help deter abusive subpoenas and to compensate those who have had to fight them off. Like the anti-SLAPP statute does for unmeritorious litigation Section 1987.2 of the Code of Civil Procedure allows for mandatory recovery of fees for unmeritorious unmasking subpoenas that courts quash. Unfortunately, like robust anti-SLAPP laws, not all states have such a provision, which is another reason why it's important that platforms not be exposed to these other jurisdictions simply because they may have completed the purely ministerial task of registering with the Secretary of State or having some users there and not any more substantive connection. Platforms are in the business of facilitating speech, and they should be able to choose which laws to expose themselves to that will give them the best ability to do it.

Searching digital things isn't like searching physical things. But a majority of Fourth Amendment jurisprudence relies on making inapt comparisons between houses/papers and devices capable of holding several housefuls of papers, communications, photos, etc.

Guidelines for digital searches are an inexact science. Given the nature of these searches, there's clearly room for abuse. It's almost inevitable. Access must be granted to an entire device (computer, phone, hard drive) to find what's sought as evidence. Files aren't named incriminating.docx so files must be opened to determine their contents. In almost all digital searches, law enforcement gets the haystack and then goes looking for needles.

The problem with this approach is it allows law enforcement to reroute search efforts (or apply for new warrants) if they happen to discover something incriminating that wasn't exactly what they were looking for. We've already seen this happen in espionage cases (where child porn was discovered) and the FBI's dig into Hillary Clinton's private email server (a search for illicit text messages from Anthony Weiner resulted in the examination of thousands of emails stored by his estranged wife [and former Clinton aide] Huma Abedin).

If law enforcement needs to view unrelated files to find the evidence they've sworn (in an affidavit) they'd find, how do you stop them from using evidence not specifically related to the confines of the search? That's the question the Oregon Supreme Court wrestled with before coming up with an imperfect answer.

The facts of the case are undeniably tragic. Here they are summed up by Orin Kerr, whose own writings on the subject of digital searches are referenced a few times in the court's decision.

Here's a very simplified version of the facts (enough to explain the legal context, no more). The police suspected that Mansor had abused his infant son in a way that led to his tragic death. The police obtained a warrant to search Mansor's computer for evidence of abuse. But the warrant they drafted was incredibly narrow. As construed by the Oregon Supreme Court, the warrant only authorized a search for the Internet search terms that Mansor had entered in to his browser for a specific 15-minute window before Mansor had called 911 to report his son's injury.

The problem with the search is it immediately exceeded the restrictions law enforcement had placed on itself. These restrictions weren't found in the warrant request, which was completely open-ended, but in the instructions the agency passed on to the forensic examiner. From the opinion [PDF]:

The warrant was executed that night. Two laptop computers, two desktop computers, and other items from B’s room were seized. The computers were taken to the Northwest Regional Computer Forensics Laboratory, operated by the FBI, which performed the forensic analysis. The lab’s report summarized the request:

“[Rookhuyzen] requested that the [seized computer drives] be examined for internet history and internet search terms input by the user on [June 12] especially from 2pm onward. Per a discussion with Det. Rookhuyzen, the suspect searched the internet 15 minutes prior to calling 9-1-1 in regards to his 11-week old child suffering injuries. Suspect claimed that the internet searches were regarding how to aid an injured infant. Pertinent examination results should be regarding child abuse and a possible history thereof.”

This self-imposed limitation was almost immediately exceeded. New search terms were added. For no discernible reason, the agency asked forensics to recover emailed messages. Eventually, law enforcement found what it was looking for by removing the time limit placed on internet history/search terms to allow examination of data dating back to 2005 -- five years before the infant at issue was born.

The search results compiled covering the 15-minute window surrounding the original 911 call appeared to track with the suspect's story. Those dating back further indicated a history of abusive behavior towards the infant. The search terms from outside the original proposed range of June 12th (the date of the 911 call) were introduced as evidence of Mansor's motive and mindset.

At trial, Detective Hays relied on the forensic lab’s reports to testify about defendant’s internet history. He stated that shortly before the 9-1-1 call, defendant searched the term “baby pulse no breathing”—a search consistent with defendant’s explanation of events. The focus of Hays’s testimony on defendant’s internet history, however, was computer activity that occurred before that day. Interpreting reports generated by the forensic examiner, Hays concluded that on five separate occasions—the day of the 9-1-1 call and four earlier occasions, the earliest 54 days before the call—the computer had been used to conduct searches about or related to child abuse. The prosecutor implied that the search terms typed into the computer, often in quick succession, provided a snapshot of defendant’s thought process and conduct. For example, three days before the 9-1-1 call, there were many relevant searches, including, at 6:24 a.m., a search for “afraid of abusing my baby,” then shortly after that, “how do I deal with a screaming baby,” then three minutes later, “baby, swelling, back of head.”

This evidence was challenged by Mansor but the trial court ruled the evidence collected fell under the "plain view" warrant exception. Even if law enforcement had exceeded its self-imposed limits, the information would apparently have been uncovered during the course of the lawful search. This ruling ignored the fact that very little of what's uncovered during a forensic search could really be considered "plain view," what with access to deleted files and years of internet activity.

The appeals court reversed this decision, ruling the warrant itself was unconstitutionally broad. It held that ordering a forensic examination of the suspect's computers exceeded what was necessary to obtain evidence related to crime at hand.

The state supreme court comes to a similar conclusion, but for different reasons. The warrant is still overbroad but the remedies and protections flow from the state's Constitution, rather than the US Constitution. Oregon's protections exceed those of the Fourth Amendment.

Addressing the issue of overbroad searches and search warrants, the court hands down this deterrent and avenue for challenge. Citing the Supreme Court's Riley decision and noting its refusal to compare digital devices containing millions of "papers" to yesteryear's "containers" and "pants pockets," the state court finds the most practical way to limit digital searches is to immediately disqualify evidence obtained in excess of the warrant's stated confines.

In our view, the privacy interests underlying Article I, section 9, are best protected by recognizing a necessary trade-off when the state searches a computer that has been lawfully seized. Even a reasonable search authorized by a valid warrant necessarily may require examination of at least some information that is beyond the scope of the warrant. Such state searches raise the possibility of computer search warrants becoming the digital equivalent of general warrants…

[...]

Although such searches are lawful and appropriate, individual privacy interests preclude the state from benefiting from that necessity by being permitted to use that evidence at trial. We thus conclude that the state should not be permitted to use information obtained in a computer search if the warrant did not authorize the search for that information, unless some other warrant exception applies.

It's a new exclusionary rule specifically aligned to Oregon's Constitution that will hopefully deter fishing expeditions or unrelated investigations. But even if it doesn't, it's a challenge that can immediately be raised to presented evidence that goes further than a Fourth Amendment challenge would. Defendants don't have to challenge the validity of the warrant but rather the evidence obtained by it, if it's in excess of the warrant's demands. This may encourage law enforcement to craft broader search warrants, but the language in the first paragraph of the previous quote shows the state's supreme court is already viewing broad digital search warrants with skepticism.

I've written two installments in this series (part 1 is here and part 2 is here). And while I could probably turn itemizing complaints about social-media companies into a perpetual gig somewhere — because there's always going to be new material — I think it's best to list only just a few more for now. After that, we ought to step back and weigh what reforms or other social responses we really need. The first six classes of complaints are detailed in Parts 1 and 2, so we begin here in Part 3 with Complaint Number 7.

(7) Social media are bad for us because they're so addictive to us that they add up to a kind of deliberate mind control.

As a source of that generalization we can do no better than to begin with Tristan Harris's July 28, 2017 TED talk, titled "How a handful of tech companies control billions of minds every day."

Harris, a former Google employee, left Google in 2015 to start a nonprofit organization called Time Well Spent. That effort has now been renamed the Center for Humane Technology ( http://www.timewellspent.io now resolves to https://humanetech.com). Harris says his new effort — which also has the support of former Mozilla interface designer Aza Raskin and early Facebook funder Roger McNamee — represents a social movement aimed at making us more aware of the ways in which technology, including social media and other internet offerings, as well as our personal devices, are continually designed and redesigned to make them more addictive.

Yes, there's that notion of addictiveness again — we looked in Part 2 at claims that smartphones are addictive and talked about how to address that problem. But regarding the "mind control" variation of this criticism, it's worth examining Harris's specific claims and arguments to see how they compare to other complaints about social media and big tech generally. In his June 2017 TED talk. Harris begins with the observation that social-media notifications on your smart devices, may lead you to have thoughts you otherwise wouldn't think:

"If you see a notification it schedules you to have thoughts that maybe you didn't intend to have. If you swipe over that notification, it schedules you into spending a little bit of time getting sucked into something that maybe you didn't intend to get sucked into."

But, as I've suggested earlier in this series, this feature of continually tweaking content to attract your attention isn't unique to internet content or to our digital devices. This is something every communications company has always done — it's why ratings services for traditional broadcast radio and TV exist. Market research, together with attempts to deploy that research and to persuade or manipulate audiences, has been at the heart of the advertising industry for far longer than the internet has existed, as Vance Packard's 1957 book THE HIDDEN PERSUADERS suggested decades ago.

One major theme of Packard's THE HIDDEN PERSUADERS is that advertisers increasingly relied less on consumer surveys (derisively labeled "nose-counting") but on "motivational research" — often abbreviated by 1950s practitioners as "MR" — to look past what consumers say they want. Instead, the goal is to how they actually behave, and then gear their advertising content to shape or leverage consumers' unconscious desires. Packard's narratives in THE HIDDEN PERSUADERS are driven by revelations of the disturbing and even scandalous agendas of MR entrepreneurs and the advertising companies that hire them. Even so, Packard is careful in his book, in its penultimate chapter, to address what he calls "the question of validity" — that is, the question of whether "hidden persuaders'" strategies and tactics for manipulating consumers and voters are actually scientifically grounded. Quite properly, Packard acknowledges that the claims of the MR companies may have been oversold, or may have been adopted by companies who simply lack any other strategy for figuring out how to reach and engage consumers.

In spite of Packard's scrupulous efforts to make sure that no claims of advertising's superpowers to sway our thinking are accepted uncritically, our culture nevertheless has accepted at least provisionally the idea that advertising (and its political cousin, propaganda), affects human beings at pre-rational levels. It is this acceptance of the idea that content somehow takes us over that Tristan Harris invokes consistently in his writings and presentations about how social media, the Facebook newsfeed, and internet advertising work on us.

Harris prefers to describe how these online phenomena affect us in deterministic ways:

"Now, if this is making you feel a little bit of outrage, notice that that thought just comes over you. Outrage is a really good way also of getting your attention. Because we don't choose outrage — it happens to us."

"The race for attention [is] the race to the bottom of the brainstem."

Nothing Harris says about the Facebook newsfeed would have seemed foreign to a Madison Avenue advertising executive in, say, 1957. (Vance Packard includes commercial advertising as well as political advertising as centerpieces of what he calls "the large-scale efforts being made, often with impressive success, to channel our unthinking habits, our purchasing decisions, and our thought processes by the use of insights gleaned from psychiatry and the social sciences.") Harris describes Facebook and other social media in ways that reflect time-honored criticisms of advertising generally, and mass media generally.

But remember that what Harris says about internet advertising or Facebook notifications or the Facebook news feed is true of all communications. It is the very nature of communications among human beings that they give us thoughts we would not otherwise have. It is the very nature of hearing things or reading things or watching things that we can't unhear them, or unread them, or unwatch them. This is not something uniquely terrible about internet services. Instead it is something inherent in language and art and all communications. (You can find a good working definition of "communications" in Article 19 of the United Nations' Universal Declaration of Human Rights, which states that individuals have the right "to seek, receive, or impart information.") That some people study and attempt to perfect the effectiveness of internet offerings — advertising or Facebook content or anything else — is not proof that they're up to no good. (They arguably are exercising their human rights!) Similarly, the fact that writers and editors, including me, try to study how words can be more effective when it comes to sticking in your brain is not an assault on your agency.

It should give us pause that so many complaints about Facebook, about social media generally, about internet information services, and about digital devices actively (if maybe also unconsciously) echo complaints that have been made about any new mass medium (or mass-media product). What's lacking in modern efforts to criticize social media in particular — and especially when it comes to big questions like whether social media are damaging to democracy — is the failure of most critics to be looking at their own hypotheses skeptically, seeking falsification (which philosopher Karl Popper rightly notes is a better test of the robustness of a theory) rather than verification.

As for all the addictive harms that are caused by combining Facebook and Twitter and Instagram and other internet services with smartphones, isn't it worth asking critics whether they've considered turning notifications off for the social-media apps?

(8) Social media are bad for us because they get their money from advertising, and advertising — especially effective advertising — is inherently bad for us.

Harris's co-conspirator Roger McNamee, whose authority to make pronouncements on what Facebook and other services are doing wrong derives primarily from his having gotten richer from them, is blunter in his assessment of Facebook as a public-health menace:

"Relative to FB, the combination of an advertising model with 2.1 billion personalized Truman Shows on the ubiquitous smartphone is wildly more engaging than any previous platform ... and the ads have unprecedented effectiveness."

There's a lot to make fun of here--the presumption that 2.1 billion Facebook users are just creating "personalized Truman Shows," for example. Only someone who fancies himself part of an elite that's immune to what Harris calls "persuasion" would presume to draw that conclusion about the hoi polloi. But let me focus instead on the second part--the bit about the ads with "unprecedented effectiveness." Here the idea is, obviously, that advertising may be better for us when it's less effective.

Let's allow for a moment that maybe that claim is true! Even if that's so, advertising has played a central role in Western commerce for at least a couple of centuries, and in world commerce for at least a century, and the idea that we need to make advertising less effective is, I think fairly clearly, a criticism of capitalism generally. Now, capitalism may very well deserve that sort of criticism, but it seems like an odd critique coming from someone who's already profited immensely from that capitalism.

And it also seems odd that it's focused particularly on social media when, as we have the helpful example of THE HIDDEN PERSUADERS to remind us, we've been theoretically aware of the manipulations of advertising for all of this century and at least half of the previous one. If you're going to go after commercialism and capitalism and advertising, you need to go big--you can't just say that advertising suddenly became a threat to us because it's more clearly targeted to us based on our actual interests. (Arguably that's a feature rather than a bug.)

In responding to these criticisms, McNamee says "I have no interest in telling people how to live or what products to use." (I think the meat of his and Harris's criticisms suggests otherwise.) He explains his concerns this way:

"My focus is on two things: protecting the innocent (e.g., children) from technology that harms their emotion development and protecting democracy from interference. I do not believe that tech companies should have the right to undermine public health and democracy in the pursuit of profits."

As is so often the case with entrepreneurial moral panics, the issue ultimately devolves to "protecting the innocent" — some of whom surely are children but some other proportion of whom constitute the rest of us. In an earlier part of his exploration of these issues on the venerable online conferencing system The WELL, McNamee makes clear, in fact, that he really is talking about the rest of us (adults as well as children):

"Facebook has 2.1 billion Truman Shows ... each person lives in a bubble tuned to their emotions ... and FB pushes emotional buttons as needed. Once it identifies an issue that provokes your emotions, it works to get you into groups of like-minded people. Such filter bubbles intensify pre-existing beliefs, making them more rigid and extreme. In many cases, FB helps people get to a state where they are resistant to ideas that conflict with the pre-existing ones, even if the new ideas are demonstrably true."

These generalizations wouldn't need much editing to fit 20^th-century criticisms of TV or advertising or comic books or 19^th-century criticisms of dime novels or 17^th-century criticisms of the theater. What's left unanswered is the question of why this new mass medium is going to doom us when none of the other ones managed to do it.

(9) Social media need to be reformed so they aren't trying to make us do anything or get anything out of us.

It's possible we ultimately may reach some consensus on how social media and big internet platforms generally need to be reformed. But it's important to look closely at each reform proposal to make sure we understand what we're asking for and also that we're clear on what the reforms might take away from us. Once Harris's TED talk gets past the let-me-scare-you-about-Facebook phase, it gets better — Harris has a program for reform in mind. Specifically, he calls for what he calls "three radical changes to our society," which I will paraphrase and summarize here.

First, Harris says, "we need to acknowledge that we are persuadable." Here, unfortunately, he elides the distinction between being persuaded (which involves evaluation and crediting of arguments or points of view) and being influenced or manipulated (which may happen at an unconscious level). (In fairness, Vance Packard's THE HIDDEN PERSUADERS is guilty of the same elision.) But this first proposition isn't radical at all — even if we're sticks-in-the-mud, we normally believe we are persuadable. It may be harder to believe that we are unconsciously swayed by how social media interact with us, but I don't think it's exactly a radical leap. We can take it as a given, I think, that internet advertising and Facebook's and Google's algorithms try to influence us in various ways, and that they sometimes succeed. The next question then becomes whether this influence is necessarily pernicious, but Harris finds passes quickly over this question, assuming the answer is yes.

Second, Harris argues, we need new models and accountability systems, guaranteeing accountability and transparency for the ways in which our internet services and digital devices try to influence us. Here there's very little to argue with. Transparency about user-experience design that makes us more self-aware is all to the good. So that doesn't seem like a particularly radical goal either.

It's in Harris's third proposal — "We need a design renaissance" — that you actually do find something radical. As Harris explains it, we need to redesign our interactions with services and devices so that we're never persuaded to do something that we may not initially want to do. He states, baldly, that "the only form of ethical persuasion that exists is when the goals of the persuader are aligned with the goals of the persuadee." This is a fascinating proposition that, so far as I know, is not particularly well-grounded in fact or in the history of rhetoric or in the history of ethics. It seems clear that sometimes it's necessary to persuade people of ideas that they may be predisposed not to believe, and that, in fact, they may be more comfortable not believing.

Given that fact, it follows that If we are worried about whether Facebook's algorithms lead to "filter bubbles," we should call for (or design) a system around the idea of never persuading anyone whose goals aren't already aligned with yours. Arguably, such a social-media platform might be more prone to filter bubbles rather than less so. One doesn't get the sense, reviewing Harris's presentations or other public writings and statements from his allies like Roger McNamee, either that they've compared current internet communications with previous revolutions driven by new mass-communications platforms, or analyzed their theories in light of the centuries of philosophical inquiry regarding human autonomy, agency, and ethics.

Moving past Harris's TED talk, we next must consider McNamee's recent suggestion that Facebook move from an advertising-supported to for-pay model. In a February 21 Washington Post op-ed, McNamee wrote the following:

"The indictments brought by special counsel Robert S. Mueller III against 13 individuals and three organizations accused of interfering with the U.S. election offer perhaps the most powerful evidence yet that Facebook and its Instagram subsidiary are harming public health and democracy. The best option for the company — and for democracy — is for Facebook to change its business model from one based on advertising to a subscription service."

In a nutshell, the idea here is that the incentives of advertisers, who want to compete for your attention, will necessarily skew how even the most well-meaning version of advertising-supported Facebook interacts with you, and not for the better. So the fix, he argues, is for Facebook to get rid of advertising altogether. "Facebook's advertising business model is hugely profitable," he writes, "but the incentives are perverse."

It's hard to escape the conclusion that McNamee believes either (a) advertising is inherently bad, or (b) advertising made more effective by automated internet platforms is particularly bad. Or both. And maybe advertising is, in fact, bad for us. (That's certainly a theme of Vance Packard's THE HIDDEN PERSUADERS, as well as of more recent work such as Tim Wu's book 2016 book THE ATTENTION MERCHANTS.) But it's hard to escape the conclusion that McNamee, troubled by Brexit and by President Trump's election, wants to kick the economic legs out from under Facebook's (and, incidentally, Google's and Bing's and Yahoo's) economic success. Algorithm-driven serving of ads is bad for you! It creates perverse incentives! And so on.

It's true, of course, that some advertising algorithms have created perverse incentives (so that Candidate Trump's provocative ads were seen as more "engaging" and therefore were sold cheaper — or, alternatively, more expensively — than Candidate Clinton's. I think the criticism of that particular algorithmic approach to pricing advertising is valid. But there are other ways to design algorithmic ad service, and it seems to me that the companies that have been subject to the criticisms are being responsive to them, even in the absence of regulation. This, I think, is the proper way to interpret Mark Zuckerberg's newfound reflection (and maybe contrition) over Facebook's previous approach to its users' experience, and his resolve — honoring without mentioning Tristan Harris's longstanding critique — that "[o]ne of our big focus areas for 2018 is making sure the time we all spend on Facebook is time well spent."

Some Alternative Suggestions for Reform and/or Investigation

It's not too difficult, upon reflection, to wonder whether the problem of "information cocoons" or "filter bubbles" is really as terrible as some critics have maintained. If hyper-addictive filter-bubbles have historically unprecedented power to overcome our free will, surely presumably have this effect even on most assertive, independently thinking, strong-minded individuals — like Tristan Harris or Roger McNamee. Even six-sigma-degree individualists might not escape! But the evidence that this is, in fact, the case, is less than overwhelming. What seems more likely (especially in the United States and in the EU) is that people who are dismayed by the outcome of the Brexit referendum or the U.S. election are trying to find a Grand Unifying Theory to explain why things didn't work out they way they'd expected. And social media are new, and they seem to have been used by mischievous actors who want to skew political processes, so it follows that the problem is rooted in technology generally or in social media or in smartphones in particular.

But nothing I write here should be taken as arguing that social media definitely aren't causing or magnifying harms. I can't claim to know for certain. And it may well be the case, in fact, that some large subset of human beings create "filter bubbles" for themselves regardless of what media technologies they're using. That's not a good thing, and it's certainly worth figuring out how to fix that problem if it's happening, but focusing on how that problem as a presumed phenomenon specific to social media perhaps focuses on a symptom of the human condition rather than a disease grounded in technology.

In this context, then, the question is, what's the fix? There are some good suggestions for short-term fixes, such as the platforms' adopting transparency measures regarding political ads. That's an idea worth exploring. Earlier in this series I've written about other ideas as well (e.g., using grayscale on our iPhones).

There are, of course, more general reforms that aren't specific to any particular platform. To start with, we certainly need to address more fundamental problems — meta-platform problems, if you will — of democratic politics, such as teaching critical thinking. We actually do know how to teach critical thinking — thanks to the ancient Greeks we've got a few thousand years of work done already on that project — but we've lacked the social will to teach it universally. It seems to me that this is the only way by which a cranky individualist minority that's not easily manipulated by social media, or by traditional media, can become the majority. Approaching all media (including radio, TV, newspapers, and other traditional media — not just internet media, or social media) with appropriate skepticism has to be part of any reform policy that will lead to lasting results.

It's easy, however, to believe that education — even the rigorous kind of education that includes both traditional critical-thinking skills and awareness of the techniques that may be used in swaying our opinions — will not be enough. One may reasonably believe that education can never be enough, or that, even when education is sufficient to change behavior (consider the education campaigns that reduced smoking or led to increased use of seatbelts), education all by itself simply takes too long. So, in addition to education reforms, there probably are more specific reforms — or at least a consensus as to best practices — that Facebook, other platforms, advertisers, government, and citizens ought to consider. (It seems likely that, to the extent private companies don't strongly embrace public-spirited best-practices reforms, governments will be willing to impose such reforms in the absence of self-policing.)

One of the major issues that deserve more study is the control and aggregation of user information by social-media platforms and search services. It's indisputable that online platforms have potentiated a major advance in market research — it's trivially easy nowadays for the platforms to aggregate data as to which ads are effective (e.g., by inspiring users to click through to the advertisers' websites). Surely we should be able to opt out, right?

But there's an unsettled public-policy question about what opting out of Facebook means or could mean. In his testimony earlier this year at Senate and House hearings on Facebook, Mark Zuckerberg has consistently stressed that individual users do have some high degree of control over the data (pictures, words, videos, and so on) that they've contributed to Facebook, and that users can choose to remove the data they've contributed. Recent updates in Facebook's privacy policy seem to underscore users' rights in this regard.

It seems clear that Facebook is committing itself at least to what I call Level 1 Privacy: you can erase your contributions from Facebook altogether and "disappear," at least when it comes to information you have personally contributed to the platform. But does it also mean that even other people who've shared my stuff no longer can share it (in effect, allowing me to depart and punch holes in other people's sharing of my stuff when I depart?

If Level 1 Privacy relates to the information (text, pictures, video, etc., that I've posted), that's not the end of the inquiry. There's also what I have called Level 2 Privacy, centering on what Facebook knows about me, or can infer from my having been on the service, even after I've gone. Facebook has had a proprietary interest in drawing inferences from how we interact with their service and using that to inform what content (including but not limited to ads) that Facebook serves to us. That's Facebook's data, not mine, because FB generated it, not me. If I leave Facebook, surely Facebook retains some data about me based on my interactions on the platform. (We also know, in the aftermath of Zuckerberg's testimony before Congress, that Facebook manages to collect data about people who themselves are not users of the service.)

And then there's Level 3 Privacy, which is the question of what Facebook can and should do with this inferential data that it has generated. Should Facebook share it with third parties? What about sharing it with governments? If I depart and leave a resulting hole in Facebook content, are there still ways to connect the dots so that not just Facebook itself, but also third-party actors, including governments, can draw reliable inferences about the now-absent me? In the United States, there arguably may be Fourth Amendment issues involved, as I've pointed out in a different context elsewhere. We may reasonably conclude that there should be limits on how such data can be used and on what inferences can be drawn. This is a public-policy discussion that needs to happen sooner rather than later.

Apart from privacy and personal-data concerns, we ought to consider what we really think about targeted advertising. If the criticism of targeted advertising, "motivational research," and the like historically has been that the ads are pushing us, then the criticism of internet advertising seems to be that internet-based ads are pulling us or even seducing us, based on what can be inferred about our inclinations and preferences. Here I think the immediate task has to be to assess whether the claims made by marketers and advertisers regarding the manipulative effects ads have on us are scientifically rigorous and testable. If the claims stand up to testing, then we have some hard public-policy questions we need to ask about whether and how advertising should be regulated. But if they aren't — if, in fact, our individual intuitions that we retain freedom and autonomy even in the face of internet advertising and all the data that can be gathered about us — then we need to assert that that freedom and autonomy and acknowledge that, just maybe, there's nothing categorically oppressive about being invited to engage in commercial transactions or urged to vote for a particular candidate.

Both the privacy questions and the advertising questions are big, complex questions that don't easily devolve to traditional privacy talk. If in fact we need to tackle these questions pro-actively, I think we must begin by defining what the problems are in ways that all of us (or at least most of us) agree on. Singling out Facebook is the kind of single-root-cause theory of what's wrong with our culture today may appeal to us as human beings — we all like straightforward storylines — but that doesn't mean it's correct. Other internet services harvest our data too. And non-internet companies have done so (albeit in more primitive ways) for generations. It is difficult to say they never should do so, and it's difficult to frame the contours of what best practices should be.

But if we're going to grapple with the question of regulating social-media platforms and other internet services, thinking seriously about what best practices should be, generally speaking, is the task that lies before us now. Offloading the public-policy questions to the platforms themselves — by calling on Facebook or Twitter or Google to censor antisocial content, for example — is the wrong approach, because it dodges the big questions that we need to answer. Plus, it would likely entrench today's well-moneyed internet incumbents.

Nobody elected Mark Zuckerberg or Jack Dorsey (or Tim Cook or Sundar Pichai) to do that for us. The theory of democracy is that we decide the public-policy questions ourselves, or we elect policymakers to do that for us. But that means we each have to do the heavy lifting of figuring out what kinds of reforms we think we want, and what kind of commitments we're willing to make to get the policies right.

Mike Godwin (mnemonic@gmail.com) is a Distinguished Senior Fellow at R Street Institute.

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There's one person who wields more power than anyone to shape the awful EU Copyright Directive: the MEP Axel Voss. He's the head of the main Legal Affairs Committee (JURI) that is steering the Directive through the European Parliament. Voss took over from the previous MEP leading JURI, Therese Comodini Cachia, after she decided to return to her native Malta as member of the national parliament. Her draft version of the Directive was certainly not perfect, but it did possess the virtue of being broadly acceptable to all sides of the debate. When Voss took over last year, the text took a dramatic turn for the worse thanks to the infamous "snippet tax" (Article 11 of the proposed Directive) and the "upload filter" (Article 13).

As Mike reported a couple of weeks ago, Voss offered a pretty poor defense of his proposals, showing little understanding of the Internet. But he made clear that he thinks respecting copyright law is really important. For example, he said he was particularly concerned that material is being placed online, where "there is no remuneration of the concerned author." Given that background, it will probably come as no surprise to Techdirt readers to learn that questions are now being asked whether Voss himself has paid creators for material that he has used on his social media accounts:

BuzzFeed News Germany ... looked at the posts from the past 24 months on Voss's social media channels. In the two years, BuzzFeed News has found at least 17 copyrighted images from at least eight different image agencies, including the German press agency dpa.

As good journalists, BuzzFeed News Germany naturally contacted Axel Voss to ask whether he had paid to use all these copyrighted images:

Since last Thursday, 5 July, BuzzFeed News Germany has asked Voss's office and his personal assistant a total of five times in writing and several times over the phone whether Axel Voss or his social media team has paid for the use of these copyrighted photos. Voss's staff responded evasively five times. Asked if the office could provide us with licensing evidence, the Voss office responded: "We do not provide invoices to uninvolved third parties."

Such a simple question -- had Voss paid for the images he used? -- and yet one that seemed so hard for the Voss team to answer, even with the single word "yes". The article (original in German) took screenshots of the images the BuzzFeed Germany journalists had found. That's just as well, because shortly afterwards, 12 of the 17 posts with copyrighted images had been deleted. The journalists contacted Axel Voss once more, and asked why they had disappeared (original in German). To which Axel Voss's office replied: anyone can add and remove posts, if they wish. Which is true, but fails to answer the question, yet again. However, Axel Voss's office did offer an additional "explanation":

according to the current legal situation (...), if the right-holder informs us that we have violated their rights, we remove the image in question according to the notice and takedown procedure of the e-commerce directive.

That is, Axel Voss, or his office, seems to believe it's fine to post copyrighted material online provided you take it down if someone complains. But that's not how it works at all. The EU notice and takedown procedure applies to the Internet services hosting material, not to the individual users of those services. The fact that the team of the senior MEP responsible for pushing the deeply-flawed Copyright Directive through the European Parliament is ignorant of the current laws is bad enough. That he may have posted copyrighted material without paying for it while claiming to be worried that creators aren't being remunerated for their work, is beyond ridiculous.

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You'll of course recall that during the net neutrality repeal the FCC's public comment process was flooded with bogus comments in support of (and in a few instances in opposition to) the FCC's plan. Many of these comments came from a bot that filled the proceedings with fake comments in perfect alphabetical order, something that should have been pretty easy to prevent (had the FCC actually wanted to). Many of the comments came from people that had their identities lifted to support the repeal (like myself), while other commenters were, well, deceased.

Nobody's been able to yet confirm who was behind the identity fraud and bot attack, in part because the FCC actively blocked a law enforcement investigation attempting to find out. The general consensus is that "somebody" (either ISP-linked outfits or some group of partisans) was hoping to erode trust in the comment process to try and downplay the massive public backlash to the repeal. But it should also be noted that this is a problem that extends beyond the FCC, and has impacted other major policy decisions at major agencies government wide.

Back in May, Senators Senators Jeff Merkley and Pat Toomey fired off a letter to the FCC, noting that they too had their identities stolen during the repeal, while urging the FCC to you know, actually do something about it:

"Late last year, the identities of as many as two million Americans were stolen and used to file fake comments during the Federal Communications Commission’s (FCC’s) comment period for the net neutrality rule,” the Senators wrote in a letter to Pai. “We were among those whose identities were misused to express viewpoints we do not hold. We are writing to express our concerns about these fake comments and the need to identify and address fraudulent behavior in the rulemaking process."

Pai appears to have finally gotten around to responding to the Senators. In a response letter (pdf) Pai acknowledges that he too had his identity lifted during the scandal-ridden proceeding:

"It is troubling that some bad actors submitted comments using false names,” Mr. Pai said. “Indeed, like you, comments were submitted in my name and my wife’s name that reflect viewpoints we do not hold."

Pai, whose agency almost gleefully ignored the vast majority of Americans in opposition to the repeal, proceeds to note that the FCC certainly does need to update its systems (despite the fact it just spent nearly $3 million doing so). Pai agreed that the very least it could do was implement some kind of CAPTCHA system to at least thwart automated bots like the one used last fall. He acknowledged that he'd press Congress for additional funding (something he knows isn't likely in an era where gutting regulatory agencies is the fashion trend), but there's certainly no guarantee that anything will actually come of this promise.

In his letter, Pai once again tries to downplay the importance of public comments, despite the fact this was the only real opportunity the public had to express its thoughts on the repeal. He also, amusingly, pretends that the repeal had something to do with the agency's consideration of the facts:

"I can assure you, however, that the Commission does not make policy decisions merely by tallying the comments on either side of a proposal to determine what position appears to have greater support, nor does it attribute greater weight to comments based solely on the submitter's identity. And the Commission is grateful to all commenters who engaged substantively with the legal and public policy questions presented in this important rulemaking. Indeed, a review of the Restoring Internet Freedom Order clearly demonstrates that the Commission's decision was based on a careful review of the relevant law and facts."

It shows no such thing. The FCC based the lion's share of the net neutrality repeal on completely debunked lobbyist data points, then ignored millions of Americans clearly annoyed at the agency's decision. It then thought the best response to the identity fraud problems plaguing the public comment system would be to ignore a law enforcement inquiry entirely. That is, when it wasn't busy apparently making up a DDOS attack in a bizarre effort to downplay the impact of angry John Oliver viewers (something FOIA e-mails recently confirmed).

Pai also uses the letter to again try and conflate automated form letters commonly used by both sides of the debate (which I affectionately refer to as "outrage-o-matic" letters) with the wholesale bot-driven fraud that occurred. It's here you'll notice the FCC oddly has no data on bots or the half a million comments that were found to have originated in Russia, but has ample data on pro-net-neutrality folks that happened to have used an automated letter system but included an incorrect address:

"With respect to your other inquiries, the FCC does not have any information regarding whether any fake comments were submitted by foreign governments, nor can we verify the total number of comments that may have originated from bots. Similarly, we do not have a specific total number of fake comments that were filed. We do believe, however, that at least eight million pro-Title II comments were not filed with accurate names and/ or addresses. For example, 7,568,949 identical comments consisted of a single, pro-Title II sentence: "I am in favor of strong net neutrality under Title II of the Telecommunications Act."

If it's not clear, Pai's still trying to downplay the massive, undeniable and bipartisan opposition to his policies via whataboutism.

Online form letters -- even if their users don't put in accurate addresses or names -- are not the same thing as the bot-driven fraud that occurred using dead people; fraud Pai ignored because undermining trust in the public comment system benefited him. And while evidence does suggest some gamesmanship certainly did occur on the pro-net neutrality side as well, that doesn't change the fact that the vast majority of legitimate comments filed with the FCC opposed his repeal (which reflects numerous different surveys on the subject).

It's very difficult to overstate what a shitshow this FCC's attack on net neutrality was. It's something historians are going to spend years dissecting, and blowback from the ham-fisted tactics will reverberate in tech policy circles for decades. And while Pai's still busy making all of the same bogus claims about his "fact-based" policies choices during the repeal, anybody expecting him to actually address the system vulnerabilities that helped bots degrade trust in the public comment process to his direct benefit--hasn't been paying attention.

The Trump Administration -- much like the administration before it -- has declared war on leakers. The government prefers to selectively leak info using anonymous sources, but only the sort of leaks that serve its political/PR purposes. Everything else -- no matter how much the leaked info serves to better inform the public -- is the target of investigations and prosecutions.

Jeff Sessions claims this administration has opened three times as many leak investigations as Obama's. If so, it will rack up unprecedented numbers. Both the Obama administration and the Trump administration have decided it's OK to target journalists' communications to hunt down leakers, an act that strikes at the very heart of the First Amendment.

An indictment against James Wolfe, a longtime Senate Intelligence Committee advisor, was put together by harvesting emails and other private communications between Wolfe and various reporters. This document confirmed what was already suspected by Ron Wyden, who demanded late last year the DOJ turn over information on its targeting of journalists' communications.

As Zoe Tillman reports for Buzzfeed, the DOJ has delivered a response to Wyden's, but it's obviously still withholding information.

The department’s response letter dated March 5, 2018, obtained by BuzzFeed News, listed instances from “January 2012 to the present.” Not included: the seizure of New York Times reporter Ali Watkins’ email and phone records.

The department’s letter to Wyden predated the revelation last month that investigators had seized Watkins’ records as part of an investigation into former Senate Intelligence Committee staffer James Wolfe. According to the Times, Watkins, a former BuzzFeed News reporter, learned in February via a letter from the Justice Department that her records had been seized — appearing to put her case within the timeframe identified by the Justice Department in its March letter to Wyden.

This is a glaring omission by the DOJ. It suggests the agency is deliberately covering up some of its forays into First Amendment territory. This letter was delivered to Wyden in early March, a few months prior to the indictment showing the DOJ had gone after more journalists' communications. None of those are listed in this response.

It could be the DOJ excluded Watkins from its response because it (supposedly) did not target her communications. Even if so, it omitted the other journalists caught up in the investigation of Wolfe, who very definitely appear to have had their communications seized.

If the DOJ is unwilling to correct the record, or at least explain why it excluded the Wolfe investigation from this report, this can only be seen as a bad faith response. It may have confirmed its surveillance of AP journalists that resulted in the greater restrictions on investigations involving journalists put into place by the last Attorney General, but if it can't honestly discuss more recent targeting of press members, there's no reason to believe it hasn't decided to ignore its self-imposed restrictions.