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Barry Eisler

About Barry Eisler Techdirt Insider

I'm a full-time novelist (thrillers) and part-time blogger (politics, marketing, language). Spent some time in the CIA, then practiced technology law, then joined a technology start-up. Writing full-time is best.

Posted on Techdirt - 9 March 2016 @ 12:38pm

Author And Former Covert CIA Operative Barry Eisler On Why You Should Support Techdirt

Our crowdfunding campaign to support our coverage of the encryption fight continues, and following on EFF director Cindy Cohn’s post on why you should support Techdirt, this week we have former CIA covert operative and current author Barry Eisler — an occasional Techdirt contributor whose thriller novel NSA surveillance overreach is a must read — has also shared his thoughts.

Help Techdirt Cut Through The Confusion In The Crypto Fight

When I want to quickly and thoroughly understand an emerging topic in intellectual property, privacy, or governmental overreach?whether as a concerned citizen, or as a novelist researching a story, or both?my first stop is Techdirt. It’s not just that their coverage of these topics is so original and insightful?though it always is. It’s also that their worldview is so refreshingly nonpartisan, by which I mean they not only don’t care, but actually seem not to be aware, of what political, financial, or corporate interests their truth-telling might offend.

The government’s current attempt to dragoon Apple into subverting the encryption that keeps its users’ data private is a premier example. There is no more important issue facing our information-age society than encryption. If encryption is strong, we can have the same feeling of security about our online lives?what we say, who we associate with, where we go, what we’re thinking, etc.?that we do in our physical lives.

If, on the other hand, the government succeeds in forcing Apple to weaken the mechanisms by which its customers keep their communications and information private, those new weaknesses will be exploitable not just by the American government, but also by America’s adversaries?including online criminal groups and hackers. And we will have accepted a precedent by which the government can force a private company to divert its engineering efforts to government-ordered ends (pause for a moment to marvel that people who self-identify as “small government” conservatives actually want this to happen). It’s hard to know which would be worse?the process, or the outcome.

In short: there’s only one thing that might redress the increasing imbalance between what the government knows about us and what we know about the government: ubiquitous strong encryption. Laws are what the government shall not do. Encryption is what the government cannot do.

This is why the government is currently going to such drastic lengths to try to render encryption impotent. And naturally, it’s relying on fear and ignorance to help get the job done.

I know of no better weapon against that fear and ignorance than Techdirt?a critical resource for clear thinking, accurate information, and evidence-based arguments fatal to propaganda. I hope you’ll join me in supporting their ongoing efforts. After all, the various politicians all scrambling to become president aren’t going to help us solve this mess. In fact, as Techdirt itself has chronicled, they’re a huge part of the problem.

Help Techdirt Cut Through The Confusion In The Crypto Fight

Posted on Techdirt - 30 July 2015 @ 09:07am

Authors Guilded, United, And Representing… Not Authors

One of the more Orwellian aspects of the book world is the number of publisher advocate groups calling themselves Author This and Author That. The Authors Guild, Authors United, the Association of Authors’ Representatives… their devotion to protecting the interests of authors is right there in the names, right? No further inquiry necessary.

That’s the idea behind the misleading nomenclature, anyway. But even a cursory glance at the behavior of all these “author” organizations reveals their true priorities and actual allegiances.

Let’s start with the Authors Guild, which claims to “have served as the collective voice of American authors,” and which describes its mission as “to support working writers. We advocate for the rights of writers by supporting free speech, fair contracts, and copyright. We create community and we fight for a living wage.” The Authors Guild even proudly notes that it “has initiated lawsuits in defense of authors’ rights, where necessary.”

Leave aside the wooly talk about creating community. How does the collective voice of American authors, the supporter of working writers, the advocate for the rights of writers, go about fighting for that living wage? Especially given that publishers are making more money from digital books than ever, and sharing less of that money with authors than ever.

Well, the organization has periodically mentioned in passing that the shockingly low lockstep 17.5% legacy publisher digital royalty rate “needs to change,” so there’s that. Sometimes a spokesperson expresses his or her “hopes” for a little more fairness. And recently they did manage a whole blog post on the topic. But that’s all. Occasional words; zero deeds. And likewise regarding a host of other obvious, longstanding, outrageous legacy publisher abuses such as life-of-copyright (forever) terms, twice-yearly payment provisions, draconian non-compete clauses, and impossible out-of-print clauses. Pro forma words and practiced complicity.

But does all this mean the Authors Guild is lying when it says it sometimes initiates lawsuits?

Not at all. The organization did sue Google and Hathitrust over digitization (the first suit was settled; in the second, the Authors Guild lost). Leave aside the merits of those suits; I think they were wrongheaded, but that’s not the point. The point is that when the Authors Guild really wants to throw down, it throws down — just never against legacy publishers and the Rich Relationships™ by which they systematically screw authors (in fact, in the Google suit, the Authors Guild fought alongside the Association of American Publishers).

Indeed, at the moment when the Authors Guild had maximum leverage over legacy publishers to extract some actual digital royalty and contract provision concessions — during Hachette’s contract standoff with Amazon — the organization surrendered that leverage and threw all its Collective Voice of American Authors weight behind Hachette. Even though Hachette’s position was costing authors money; even though Amazon had repeatedly offered to compensate any authors who were being harmed by the standoff.

What’s doubly bizarre about the Authors Guild’s reflexive anti-Amazon animus is that Amazon stands for so much of what the Authors Guild claims to want. A pristine example: as I write this, the organization bleats on its home page that “Half of Net Proceeds is the Fair Royalty Rate for E-Books,” while two lines down it calls on the government to investigate Amazon…for paying exactly that fair royalty!

Not only does the Authors Guild refuse to stand up to publishers; it actively supports them (while censoring the authors it claims to represent). I challenge you to review the organization’s public positions and find a way to distinguish them from what you would expect in a legacy publisher press release. I’m being literal here — legacy publishers and the Authors Guild actually do cite and cross-post each other’s press releases. Here’s an example — the Authors Guild, approvingly posting on its own site a press release from John Sargent, CEO of Macmillan, who in the release approvingly quotes Scott Turow, then president of the Authors Guild. It’s really that incestuous between the New York Big Five and the Collective Voice of American Authors.

If the Authors Guild really wanted to “advocate for fair contracts,” it would support self-publishing, which even more than Amazon publishing is empowering authors with the first real competition the industry has ever seen — a 70% digital royalty rate (four times the lockstep legacy standard); control over packaging and other business decisions; faster time to market. Yet there’s nothing on the Authors Guild website about how to use KDP, Kobo, NookPress, Smashwords, or any other self-publishing resource. Nothing about, the most comprehensive breakdown available about where authors are making money in Amazon-, legacy- and self-publishing. The only “self-publishing” resource available through the Collective Voice of American Authors has been a notorious scam outfit called (naturally) Author Solutions (a relationship the Authors Guild finally terminated in May).

(Novelist David Gaughran has been tireless in exposing Author Solutions’ shady practices — see the preceding links — and the refusal of establishment publishing media to follow up on his work is at least as revealing as anything else in this article about where true power lies in the industry. Within that refusal there’s a great story for an intrepid journalist about concentrated media ownership, how advertising dollars buy silence, and why establishments are so reluctant to examine their own shadiest practices.)

Authors United is no different. Against abysmally low digital royalties, Authors United might offer up a bit of pro forma tut-tutting. But the organization’s only real action — in the form of petitions, monster ads in the New York Times, media blitzes assisted by pet stenographers, letters to boards of directors, and letters to the Department of Justice pleading for protection for publishers — is against the company that has sold more books than any other, that has opened up publishing to more authors than ever before, that pays higher royalties than any legacy publisher, that is making more money for more authors than ever before, that pays authors once a month instead of twice a year, that gives authors unprecedented access to sales data, that almost single-handedly ushered in the digital book revolution — Amazon.

All of which is more than a little weird just on the face of it. But it gets even weirder — and more telling — when you consider the animating principles Authors United claims in the anti-Amazon screed it recently sent to the Justice Department:

[We can’t have a company using] its technologically supercharged monopoly powers to manipulate and supervise the sale of books and therefore affect the exchange of ideas in America…

The government has the responsibility to maintain an open, competitive, free, unsupervised, and undistorted market for books…

Our larger point is that we believe the Antitrust Division needs to reassess…overwhelming market power [regarding] any business that has established effective control of a medium of communication…

We believe these steps would restore freedom of choice, competition, vitality, diversity, and free expression in the American book market, while ensuring that the American people—as individual free citizens and as a democratic community—determine for themselves how to take advantage of the new technologies of the 21st Century…

Lofty principles! But given that Amazon’s self-publishing platform enables all authors to publish whatever they like and leaves it to readers to decide what books they themselves find beneficial, while the New York Big Five (no concentrated market power in a group with a name like that!) has historically rejected probably 999 books for every one they deem worthy of reaching the public, a few questions present themselves. Such as:

  • Who has really been manipulating and supervising the sale of books and therefore affecting the exchange of ideas in America, and who has really established effective control of a medium of communication — an entity that screens out 99.9% of books, or one that has enabled the publication of any book?
  • Who has really been running an uncompetitive, controlled, supervised, distorted market for books — a company dedicated to lower prices, or a group calling itself the Big Five that has been found guilty of conspiracy and price fixing
  • Who is really restoring freedom of choice, competition, vitality, diversity, and free expression in the American book market — an entity that consigns to oblivion 999 books out of a thousand, or one that enables the publication of all of them?
  • And who is really ensuring that the American people determine for themselves how to take advantage of the new technologies of the 21st Century — an entity responsible for zero innovation and dedicated to preserving the position of paper, or one that has popularized a new publishing and reading platform that for the first time offers readers an actual choice of formats?

Measured against every one of the lofty principles Authors United claims to champion, the Big Five is a historical disaster; Amazon, a reformist boon. The organization decries Amazon’s alleged abuse of its publisher suppliers (monopsony!), yet offers not even a word about how legacy publishers consistently abuse their own suppliers — the group commonly known as authors. Against legacy publisher abuses, silence; against the company that offers an alternative to those abuses, coordinated, well-funded attacks by a stable of celebrity authors (accompanied by admittedly hilarious claims to be “not taking sides“).

Follow any of the links above to the various positions Authors United has taken, and repeat that handy “how do these positions differ from those of any legacy publisher?” exercise. You’ll see almost complete redundancy between the positions of Authors United and those of, say, the Association of American Publishers. They might as well be the same organization. The only real difference is that one honestly declares that it represents the interests of publishers, while the other dishonestly pretends to represent the interests of authors.

Now let’s look at the Association of Authors’ Representatives, which, judging from what it has named itself, one might reasonably imagine is in the business of representing the interests of…authors.

So: when the Justice Department and 16 States Attorneys General charged the New York Big Five with colluding to fix prices, did the AAR cheer? No. Instead, they lobbied the Justice Department on behalf of the publishers. And when three of the Big Five settled with the Department of Justice, did the AAR, say, offer a public statement on behalf of the authors whose interests price-fixing had damaged? No. Instead, it protested the settlement “in the strongest possible terms” in a letter to the DOJ…on behalf of the publishers.

But when Penguin and Random House merged — inarguably increasing the already Olympian clout of the Big Five relative to authors, narrowing author alternatives, concentrating market power, diminishing choice, empowering a company notorious for scamming authors, etc., did the AAR write to the Justice Department to oppose the merger? Did the organization take any meaningful action at all?


And has this organization that purports to represent authors ever protested “in the strongest possible terms” any of the longstanding, widespread, abusive publisher practices noted above?

Against actual legacy publisher abuses, tepid words at best. In support of legacy publisher collusion, The Strongest Possible Terms.

All of which gives the lie to the oft-repeated Authors United claim that Amazon “retaliates” against authors. There’s no evidence at all for this charge; in fact, were it true, it’s hard to imagine how the books of every Authors United member, even those of floridly outspoken Authors United pitchman Doug Preston, would be available on Amazon, despite all the crazy accusations and anti-Amazon advocacy. These “author” organizations demonstrably have no fear at all of crossing Amazon. But the one group they never cross is the New York Big Five. Which is about all you need to know about where real retaliation, and real power, lies in the book industry.

Sometimes making a name misleadingly vague can serve an organization’s tactical interests — think the National Security Agency (it wouldn’t do to call it the National Surveillance Agency) or the Chamber of Commerce (can’t very well call itself the Big Business Lobbyist). Other times, organizations deliberately choose names that are the opposite of reality — calling a surveillance law the Freedom Act, for example, or a group dedicated to preventing gay marriage calling itself the National Organization for Marriage. It’s the latter tradition in which all these allegedly author-centric groups belong. To call out their real priorities, their primary affiliations, in their names would be to reduce their effectiveness.

Now look, there?s nothing wrong with lobbying the government on behalf of big publishers. The First Amendment guarantees the right to petition the government for a redress of grievances, after all, and it doesn?t say those grievances can?t be self-serving or even that they have to be sane. I just wish all these organizations pretending to advocate for authors would call themselves something a little more honest. Power in publishing is already horrendously lopsided. Publisher lobbyists masquerading as author champions only makes things worse.

Posted on Techdirt - 24 July 2014 @ 02:24pm

Why Does The Author's Guild Refuse To Even Acknowledge Views Of Authors Who Disagree With It?

Could the organization calling itself the “Authors Guild” (from its behavior, better understood as a lobbying arm for big publishing houses) get more fearful and brittle? In response to a typically lopsided AG blog post yesterday, in which the Author’s Guild mentioned, but failed to link to, a petition in favor of low ebook prices and fair wages for authors, I left the following comment:

For anyone inclined to consider thoughts a bit less hidebound than those of the “Authors Guild,” here are a few good posts:

Not for the first time, my comment didn’t make it past the censor moderator. Why? Did I use obscene language? Insult anyone? Engage in unacceptably trollish behavior? Or did I simply link to a few posts that offer opposing viewpoints? It’s funny, I write about the AG, and former president Scott Turow, and AG pitchman Richard Russo, and Douglas Preston’s self-serving anti-Amazon efforts fairly regularly. And I always link to, and extensively quote from, anything I’m discussing. Not just because I want my readers to be able to make up their own minds. Not just because I have some integrity. But also because I want people to see exactly what the AG and its legacy-publishing shills are saying. Their positions are so illogical, so self-contradictory, and so self-serving that I believe the more light I can shine on them, the better people will understand what the AG and its people are really about.

But when an organization tries to conceal what its critics are saying, it’s fair to surmise that something else is driving its behavior. And I don’t know what that thing could be other than fear of contrary opinions the organization senses are more compelling than the organization’s propaganda. Because really, what can you say about an organization so brittle, so insular, so fearful… that it won’t even permit a few contrary links in a comment section? What can you say about an organization calling itself an “Authors Guild”… that censors the voices of authors whose opinions it doesn’t like?

Posted on Techdirt - 3 July 2014 @ 07:39pm

One-Percent Authors Want To End Destructive Conflict, Bring Order to the Galaxy

Just when I thought Amazon Derangement Syndrome couldn’t get any more acute, I woke up to this “letter to our readers” spearheaded by bestselling writer Douglas Preston and signed by 69 authors. One day, historians and psychologists might manage to explain how various authors came to fear and revile a company that has sold more books than anyone in history; that pays authors up to nearly six times the royalties of the New York ?Big Five? lockstep rate; that single-handedly created the ebook and self-publishing markets; that offers more choice and better prices to more readers than anyone ever has before; and that consistently ranks as one of the world?s most admired companies. But for now, let’s see if we can figure it out ourselves…

A letter to our readers:

Amazon is involved in a commercial dispute with the book publisher Hachette, which owns Little Brown, Grand Central Publishing, and other familiar imprints.

Unmentioned is that Hachette is part of the Lagardère Group, a French conglomerate with sales of something like ten billion dollars a year. Not exactly David to Amazon’s Goliath.

These sorts of disputes happen all the time between companies and they are usually resolved in a corporate back room.

Indeed, Amazon and Hachette are just a retailer and a supplier having trouble coming to terms. Something that couldn?t be more common. Unless, unless…

But in this case, Amazon has done something unusual. It has directly targeted Hachette?s authors in an effort to force their publisher to agree to its terms.

This is misleading. Not only has Amazon not “targeted Hachette?s authors,” it has offered to compensate them for any damage they suffer by virtue of their publisher’s dispute with Amazon. Hachette has refused that offer. Do the authors of this letter not know about Amazon?s offer to help compensate Hachette’s authors, and Hachette’s refusal? Why don’t they mention it?

For the past month, Amazon has been:

–Boycotting Hachette authors, refusing to accept pre-orders on Hachette?s authors? books, claiming they are ?unavailable.?

Amazon is not boycotting anyone. All books by all Hachette authors are available in the Amazon store. In the face of this, to claim there?s a ?boycott? is either ignorance or propaganda.

Not including a preorder button for a tiny percentage of titles isn?t a boycott. It?s a shot across the bow, and a fairly mild one compared to what an actual boycott of all Hachette titles would look like. As for ?unavailable,? if a book isn?t published yet and you can?t preorder it, how else should its status be described?

–Refusing to discount the prices of many of Hachette?s authors? books.

The prices of Hachette?s books are set by Hachette. If the authors of this letter think those prices are too high ? and apparently, they do ? it?s bizarre that they?re blaming Amazon.

–Slowing the delivery of thousands of Hachette?s authors? books to Amazon customers, indicating that delivery will take as long as several weeks on most titles.

When a retailer and supplier can?t come to terms ? something the letter?s writers acknowledge happens ?all the time? ? what is the retailer supposed to tell its customers?

As writers?some but not all published by Hachette?we feel strongly that no bookseller should block the sale of books or otherwise prevent or discourage customers from ordering or receiving the books they want.

This is a bit rich. My own Amazon-published titles are boycotted by Barnes & Noble and by many indie bookstores. Tens of thousands of Indie-published authors face the same widespread boycott. An actual boycott, as in, outright refusal to stock books written by these authors ? not because of price or other contractual terms, but simply because the retailers in question don’t like these authors’ way of publishing. Yet this is the first I’ve heard any of the letter’s authors express their strong feelings on bookstores preventing or discouraging customers from ordering or receiving the books they want.

What’s really weird, when you stop and think about it, is that if customers being able to read the books they want is really an important value for the letter?s authors, you would think they would love Amazon?s business model and find Hachette’s suspect. After all, Hachette is a gatekeeper ? their whole business model is predicated on excluding from readers probably 99.99% of manuscripts. Amazon?s model is to let all authors publish and to trust readers make up their own minds. If customer choice is the real value in play here, you can?t coherently support Hachette and decry Amazon.

Unless, of course, all that happy talk about customer choice is a canard.

It is not right for Amazon to single out a group of authors, who are not involved in the dispute, for selective retaliation.

It wouldn’t be right if Amazon were doing it. As explained above, they’re not. What I’d like to know is why the letter’s authors apparently feel it is right when Barnes & Noble and other booksellers really do single out authors for retaliation? Why are they upset about a fictional Amazon boycott, and sanguine about a real Barnes & Noble one?

Moreover, by inconveniencing and misleading its own customers with unfair pricing and delayed delivery, Amazon is contradicting its own written promise to be ?Earth’s most customer-centric company.?

I agree that it’s an inconvenience for customers when a retailer and supplier can’t come to terms. But it happens, and it’s not that hard to understand why a retailer might feel compelled to hold the line in one discrete area to prevent its supplier from forcing it to charge higher prices across the board. Think of it as a “lesser of two evils” dynamic a retailer might face with regard to what’s best for its customers. Regardless, I’m not sure why the letter’s authors reflexively lay blame for the dispute and its consequences at Amazon’s feet while reflexively absolving (and refusing even to question) Hachette. And I don’t see Amazon doing anything here that I would characterize as “misleading.”

All of us supported Amazon from when it was a struggling start-up. We cheered Amazon on. Our books started Amazon on the road to selling everything and becoming one of the world?s largest corporations. We have made Amazon many millions of dollars and over the years have contributed so much, free of charge, to the company by way of cooperation, joint promotions, reviews and blogs. This is no way to treat a business partner.

Under the circumstances, that last line sounds like projection.

Nor is it the right way to treat your friends.

I’m not sure what this means. What does friendship have to do with a retailer and supplier negotiating terms? Are they saying that in a contract dispute, you can’t allow your friends to become collateral damage? Okay, but why is that message directed at Amazon and not at Hachette?

I know, I know… they really just want to end this destructive conflict, and bring order to the galaxy

Bear in mind that no one outside of Amazon and Hachette even knows for sure the details of their discussions. There’s been a lot of informed speculation in the blogosphere, and it seems likely that the essence of the dispute is that Hachette wants to return to “agency” pricing, which enables Hachette to keep the prices of ebooks artificially high, while Amazon wants the flexibility to charge less. But in the face of no knowledge, or of the likelihood that Hachette is trying to force Amazon to charge higher prices, the knee-jerk anti-Amazon response isn’t easy to understand.

Without taking sides on the contractual dispute between Hachette and Amazon, we encourage Amazon in the strongest possible terms to stop harming the livelihood of the authors on whom it has built its business.

Well, that made me smile. I?m glad no one is taking sides! In fact, reading their letter, I still have no idea which side the letter?s authors favor? 🙂

But seriously, I have to ask? do these people really not recognize that they’re taking sides? Not that I think taking sides is wrong; personally, I think Hachette is a joke and I side with Amazon because I favor lower prices, higher royalties, and more choice. But to write a letter like this and claim you’re not taking sides… are they disingenuous? Or are they so psychologically wedded to legacy publishing that they think taking Hachette’s side is just being neutral?

For some reason it reminds me of the joke: “If we’re not supposed to eat animals, why are they made of meat?”

But anyway… if the value in play here is that a company should “stop harming the livelihood of the authors on whom it has built its business,” I’m gobsmacked that these people aren’t demanding more from Hachette. Hachette pays its authors 12.5% in digital royalties. It keeps the lion’s share of increased ebook profits for itself. It demands life-of-copyright (that is, forever) terms of license. It inhibits its authors’ ability to publish other works by insisting on draconian anti-competition clauses. It pays its authors only twice a year. It has innovated precisely nothing, ever, preferring to collude to fix prices with Apple and the other members of the New York “Big Five.” That’s Hachette’s business record… and these authors, who purport to care so much about a company harming the livelihood of authors, have nothing to say about it?

I guess that?s what they mean by “not taking sides.”

None of us, neither readers nor authors, benefit when books are taken hostage.

Then why aren?t they telling Hachette to set their books free? End agency pricing! Let retailers discount! Don’t collude! Free those books!

(We?re not alone in our plea: the opinion pages of both the New York Times and the Wall Street Journal, which rarely agree on anything, have roundly condemned Amazon?s corporate behavior.)

I always mistrust this kind of assertion in the absence of links or other citations ? especially coming from a group that has already made as many misleading claims as this one. But let’s assume their claim about overlapping op-eds is true. The New York Times and Wall Street Journal “rarely agree on anything?? This is possibly the most thoughtless (or misleading) claim the letter’s authors have made yet. I know it’s a bit discursive, but here?s Noam Chomsky on propaganda:

“One of the ways you control what people think is by creating the illusion that there’s a debate going on, but making sure that that debate stays within very narrow margins. Namely, you have to make sure that both sides in the debate accept certain assumptions, and those assumptions turn out to be the propaganda system. As long as everyone accepts the propaganda system, then you can have a debate.”

Like the Democratic and Republican branches of America’s single political party, the New York Times and Wall Street Journal have far, far more in common than they do in dispute. Suggesting their concurrence on a topic is meaningful is exactly like suggesting that because majorities of Democrats and of Republicans voted to invade Iraq, the war was a good idea.

We call on Amazon to resolve its dispute with Hachette without hurting authors and without blocking or otherwise delaying the sale of books to its customers.

I know I?m repeating myself, but… it’s fascinating that these people ? who are of course not taking sides! ? are calling on Amazon this way and saying nothing at all to Hachette. You’d think Hachette is a wholly pure and innocent child, lacking any autonomy at all in this business dispute.

We respectfully ask you, our loyal readers, to email Jeff Bezos, c.e.o and founder of Amazon, at, and tell him what you think. He says he genuinely welcomes hearing from his customers and claims to read all emails from this account. We hope that, writers and readers together, we will be able to change his mind.

It?s sad. Imagine the good that might be accomplished if mega-bestselling authors like Child, Patterson, and Turow were even fractionally more inclined to leverage their fame and fortune in calling attention to real injustices in publishing. The pittance the New York “Big Five” (the cartel is right there in the moniker) pay their authors. The industrial-level scamming of newbie writers by Penguin Random House-owned Author Solutions. Harlequin setting up subsidiaries solely to screw writers out of their royalties.

Instead, these one-percenters consistently ignore the tremendous good Amazon has done for all authors, and allow misguided self-interest to distort their perceptions and their arguments. They take full-page ads in the New York Times, they give interviews with an adoring press, they publish letters like this one? all to perpetuate a publishing system that is designed to create a one-percent class of winners and to exclude everyone else.

You want to know something else the New York Times and Wall Street Journal are going to agree on? They’re going to offer a ton of coverage to this “letter to readers” because it was signed by a few superstars. And they’re going to ignore a competing petition that in the few hours since it went live is already closing in on a thousand signatures, many of them submitted by the mom-n-pop, small-business, indie authors Amazon has enabled to earn a living from their writing for the first time ever. This imbalance is the way establishments work, and the authors of the “letter to our readers” are nothing if not part of the publishing establishment they seek to perpetuate.

It’s all right. The establishment has the names. Freedom and choice have the numbers. And the numbers always win in the end.

Oh, and that petition? You can add your name here.

P.S. Some further suggested reading on this topic.

If you love books then you should be rooting for Amazon, not Hachette or the Big Five

Authors Behaving Badly and Authors Who Aren?t

Amazon Finally Defends Itself Against Accusations That It’s A Bully Pushing Around Hachette

Posted on Techdirt - 23 May 2014 @ 05:43am

'Journalist' Argues In NY Times That Publishing Decisions Should Ultimately Be Made By Government

Glenn Greenwald spends the last third of his excellent new book, “No Place to Hide: Edward Snowden, the NSA, and the US Surveillance State”, exposing the mentality and function of pseudo-journalists like David Gregory, who are in fact better understood as courtiers to power. So it was kind of Michael Kinsley to offer himself up today as living proof of Greenwald’s arguments.

In a New York Times book review, Kinsley says:

“The question is who decides [what to publish]. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government.”

Pause for a moment to let that sink in. How can the government have ultimate decision-making power consistent with the First Amendment with regard to the publication of leaks? As Kinsley himself goes on to say, “You can’t square this circle.” Indeed. Unless you believe the government should be able to impose prior restraint on the publication of anything it deems secret. Unless you want to argue that the Constitution should be amended accordingly. Unless you believe the government should have been able to prevent the publication of, say, the Pentagon Papers (it certainly tried).

By the way, that “in a democracy (which, pace Greenwald, we still are)” is worth pausing to consider. Not just for the pretentious use of pace, which I admit is amusing, but more for the childlike notion that America is a democracy and there’s nothing more to be said about it. It’s almost like Kinsley has never heard of gerrymandering, or doesn’t understand that when voters are no longer choosing their politicians and politicians are now choosing their voters, democracy isn’t what’s at work. It’s almost like he’s never heard of former IMF Chief Economist Simon Johnson’s argument that modern America is best understood as an oligarchy (pro tip for Kinsley: oligarchies and democracies are not the same thing). It’s almost like he’s never even heard of Noam Chomsky (more on whom below — for now, suffice to say that Chomsky is great at explaining people like Kinsley, who are simultaneously sophisticated about irrelevancies and simple-minded about fundamentals).

Anyway, never fear, “No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay.”

“Whatever it turns out to be”? Kinsley has already explained the “decision must ultimately be made by the government.” By comparison, does it really matter what specific mechanism the government then decides on? This is a lot like conceding that the government should have the power to execute American citizens without any recognizable due process, then confining the argument merely to mechanics (Terror Tuesdays, anyone? Due Process just means there is a process that you do?). In both cases, the government’s arguments and those of its media flunkies are indistinguishable.

(Again, see Chomsky below on the propagandistic technique of narrowing the range of acceptable debate, and then permitting vigorous discussion only within that narrow range.)

And here’s a bit of the current reality of what Kinsley breezily refers to as a government “usually overprotective of its secrets.” Secrecy metastasis would be a far better way of describing what’s going on in America, where the government knows more and more about the citizenry and the citizenry knows less and less about the government (otherwise known as “Kinsleyan Democracy”).

By the way, if we were to implement the Kinsleyan notion that the government be vested with ultimate decision-making authority with regard to the publication of any information the government itself has stamped secret, what do you think would be the impact on secrecy metastasis? Do you think there would be less secrecy? Or even more secrecy abuse?

Ah, forget I said it. Silly question. It’s not like the government has any history at all of using secrecy to cover up incompetence, corruption, and criminality.

Kinsley is a guy who’s spent his adult life as a journalist — or at least pretending to be one — and it’s as though he has no notion at all of George Orwell’s pithy definition: “Journalism is printing what someone else does not want printed: everything else is public relations.” Now, if Kinsley wants to cede his journalistic autonomy to the government (I think Matt Taibbi would have said “journalistic balls,” but there is only one Taibbi. I’m halfway through his new book, The Divide: American Injustice in the Age of the Wealth Gap, another study of Kinsleyan Democracy, and it is awesome), that’s fine. Kinsley pretty clearly prefers the role of servile government flack to that of independent journalist. But would it really be healthy for the republic if all people calling themselves journalists were in fact doing government PR work? Surely we have enough of that already?

There are so many other unintentional instances of Kinsley’s status as an exemplar of regulatory capture, of his own person functioning as elegant proof of Greenwald’s arguments. He calls Greenwald “the go-between for Edward Snowden and the newspapers that reported on Snowden’s collection of classified documents.” I’m guessing he settled on “go-between” because James Clapper had already used “accomplice”?

Also, did you know that Greenwald a “self-righteous sourpuss” (my God, who still uses this word)? Or maybe you didn’t care? I get so tired of these astonishingly shallow critiques. How much you might want to disguise your disgust with the Kinsleys of the world is primarily a tactical question, and different people will arrive at different conclusions. But if you’re not disgusted, if you’re not in fact outraged, by the government criminality and journalistic complicity Greenwald chronicles in No Place to Hide, then at best you’re not paying attention. Criticizing the demeanor of someone uninterested in concealing his disgust reveals a warped set of priorities and a pernicious set of allegiances.

As for substance, for all his flamboyant displays of largely irrelevant erudition (Henry James, Michael Frayn, Herbert Marcuse… bingo! And this guy calls Assange a narcissist?), Kinsley comes across most fundamentally as… a simpleton:

“Greenwald doesn’t seem to realize that every piece of evidence he musters demonstrating that people agree with him undermines his own argument that ‘the authorities’ brook no dissent. No one is stopping people from criticizing the government or supporting Greenwald in any way. Nobody is preventing the nation’s leading newspaper from publishing a regular column in its own pages dissenting from company or government orthodoxy. If a majority of citizens now agree with Greenwald that dissent is being crushed in this country, and will say so openly to a stranger who rings their doorbell or their phone and says she’s a pollster, how can anyone say that dissent is being crushed? What kind of poor excuse for an authoritarian society are we building in which a Glenn Greenwald, proud enemy of conformity and government oppression, can freely promote this book in all media and sell thousands of copies at airport bookstores surrounded by Homeland Security officers?”

There are several problems with this bit of self-indulgence.

First, Greenwald never argues that the authorities (and why the scare quotes? Kinsley’s the one who wants the government to be able to enforce total secrecy. If that’s not “the authorities,” what is?), “brook no dissent.” This is just a straw man, the kind of fake argument people trot out when they can’t respond to the real one, or when the voices in their heads get so loud they can no longer hear the actual conversation. Greenwald never argues that there is no dissent in America or that the First Amendment Kinsley is so keen to abridge is doing nothing to protect free speech. His argument is more akin to what Noam Chomsky has said about propaganda:

“One of the ways you control what people think is by creating the illusion that there’s a debate going on, but making sure that that debate stays within very narrow margins. Namely, you have to make sure that both sides in the debate accept certain assumptions, and those assumptions turn out to be the propaganda system. As long as everyone accepts the propaganda system, then you can have a debate.”

Chomsky also had this to say. See if you can recognize Kinsley in here:

“Propaganda very often works better for the educated than it does for the uneducated. This is true on many issues. There are a lot of reasons for this, one being that the educated receive more of the propaganda because they read more. Another thing is that they are the agents of propaganda. After all, their job is that of commissars; they’re supposed to be the agents of the propaganda system so they believe it. It’s very hard to say something unless you believe it. Other reasons are that, by and large, they are just part of the privileged elite so they share their interests and perceptions.”

And here’s how Kinsley misinterprets the section on David Gregory’s infamous Meet the Press “To the extent that you have aided and abetted Snowden… why shouldn’t you, Mr. Greenwald, be charged with a crime?” question:

“But Greenwald does not deny that he has ‘aided and abetted Snowden.’ So this particular question was not baseless. Furthermore, it was a question, not an assertion — a perfectly reasonable question that many people were asking, and Gregory was giving Greenwald a chance to answer it: If the leaker can go to prison, why should the leakee be exempt?”

As Greenwald notes in the book, Gregory’s “perfectly reasonable question” was in fact a rare textbook instance of “When did you stop beating your wife?” Someone with Kinsley’s ostentatious learning ought to know that such a loaded question is by design impossible to answer. It can only be responded to via an attack on the question’s false premises, which is what Greenwald did in that interview and then again in the book. Kinsley ignores all this and tries to argue instead that, “A-ha, Greenwald does not deny beating his wife, you see: Which is as asinine as it is dishonest.

“Greenwald’s determination to misinterpret the evidence can be comic. He writes about attending a bat mitzvah ceremony where the rabbi told the young woman that ‘you are never alone’ because God is always watching over you. ‘The rabbi’s point was clear,’ Greenwald amplifies. ‘If you can never evade the watchful eyes of a supreme authority, there is no choice but to follow the dictates that authority imposes.” I don’t think that was the rabbi’s point.”

I’m sure it wasn’t — it was merely the rabbi’s unavoidable implication. Similarly, though it may be that the de facto end of the First Amendment’s guarantee of a free press, and the advent of a new system of prior restraint, might not have been Kinsley’s point, it’s certainly his unavoidable implication. You’d think a guy who tosses around references to James and Frayn and Marcuse and all that would understand the difference. That he doesn’t isn’t comic at all. It’s sad.

“As the news media struggles to expose government secrets and the government struggles to keep them secret, there is no invisible hand to assure that the right balance is struck.”

Well, there kind of is, though it takes an actual journalist to describe it. Here’s Washington Post go-between — sorry, reporter — Barton Gellman explaining how he handles classified information in reporting on war and weapons. If you follow only one link in this post, make it this one — it’s that thoughtful, thought-provoking, and nuanced. I doubt Kinsley could understand it, but most people will find it illuminating.

“So what do we do about leaks of government information? Lock up the perpetrators or give them the Pulitzer Prize? (The Pulitzer people chose the second option.)”

Yes, clearly these are the only two options. I know I’m being hard on Kinsley, but… is he dishonest? Or is he really this simple-minded?

“This is not a straightforward or easy question.”

Pause for a moment to gaze in wonder at a guy who self-identifies as a journalist… and who just said that whether to lock up a journalist for publishing something the government wanted kept secret is not a straightforward or easy question.

“But I can’t see how we can have a policy that authorizes newspapers and reporters to chase down and publish any national security leaks they can find.”

It’s technically correct to say we can’t have such a policy — anymore than we can have a policy that the people’s right to keep and bear arms shall not be infringed; or a policy that the people will be secure in their persons, houses, papers, and effects against unreasonable searches and seizures; or a policy that no person shall be deprived of life, liberty, or property, without due process of law. Because these things are not “policies.” They are constitutional guarantees — explicit carve-outs from the broad powers we the people have otherwise granted the government. What we really can’t have — literally can’t, because of the Bill of Rights — are policies against those things. Like the policies Kinsley advocates.

Kinsley claims that, “Especially in the age of blogs, it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts.”

Really? I think a good working test of whether someone is a journalist, professional or otherwise, is whether he or she agrees with Kinsley. Because if you believe the government should have ultimate decision-making authority over what leaks to publish, you might be many things. But a real journalist isn’t one of them.

Reposted from Freedom of the Press Foundation

Posted on Techdirt - 12 March 2014 @ 07:07am

Why Won't Senator Feinstein Call Torture Torture?

There’s been a lot of great commentary already about the brouhaha between the Senate and the CIA regarding Senator Dianne Feinstein’s allegations that the CIA has, in essence, spied on the activities of the Senate’s intelligence oversight committee.  I just want to add a few thoughts.

First, it’s fair to wonder why the Senate is calling its own inquiry a report on the CIA’s “detention and interrogation program.”  Feinstein herself acknowledges her staff members have been “wading through the horrible details of a CIA program that never, never, never should have existed.”  A horrible program that should never have existed?  Does that sound like detention and interrogation… or like torture and imprisonment?

In fact, the word “torture” appears not once in Feinstein’s remarks.  Think of the linguistic dexterity required to deliver a 12-page-speech about a CIA torture program and a Senate investigation into that program without even once mentioning the word torture!  It would be like me writing this blog post without once mentioning the name “Feinstein.”  I wouldn’t know how to do it, and I’m almost in awe of the propagandists who do.

Second, it was a little weird to hear Feinstein describe the “need to preserve and protect the Internal Panetta Review,” if only because “preserve and protect” is the language the Constitution mandates for the President’s oath of office:  “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”  It’s almost as though some people think an obligation to protect secrecy is as important as an oath to defend the Constitution.

Third, so much security!  “[T]he committee staff securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.”  I couldn’t help remembering this:

Fourth, if Senator Feinstein really is as outraged as she says, and really wants the Senate’s report on the CIA’s imprisonment and torture program to be declassified, all she needs to do is introduce the report into Congressional proceedings.  She would have full immunity via the Constitution’s speech or debate clause, and there’s even precedent — Senator Mike Gravel did precisely this with the Pentagon Papers in 1971.  Or Senator Lindsey Graham, who says Congress “should declare war on the CIA” if the spying allegations are true (wouldn’t an actual Congressional declaration of war be refreshing?), could do the same.  Maybe the Senators are slightly less outraged than they profess?

Fifth, and most insidiously, note that the overseers of this country are still peddling the notion that torture is merely a policy choice, and not a crime.  In this regard, Feinstein said, “if the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted.”

No.  If Feinstein or anyone else is serious about ensuring America never again engages in institutional torture, it is imperative that the Justice Department (it’s gotten so hard not put square quotes around that phrase) investigate who ordered what Feinstein calls “an un-American, brutal program… that never, never, never should have existed” (hint: this would not be hard); to prosecute those people; and to imprison them if they are found guilty of violating America’s laws against torture.  Anything else is implicit and unavoidable acknowledgment that torture is not a crime, merely a policy choice with which Dianne Feinstein happens to disagree.  And the notion that merely persuading people that torture is bad is the right way to prevent it from happening again is illogical, ahistorical, and, as Feinstein might put it if she were thinking a little more clearly or had slightly different priorities, unAmerican, too.

Cross-posted from Barry Eisler’s blog: The Heart of the Matter: Why Won’t Senator Feinstein Call Torture Torture?

Posted on Techdirt - 21 September 2013 @ 12:00pm

Barry Eisler's Favorite Techdirt Posts Of The Week

Selecting my favorite Techdirt stories of the week has been an interesting challenge, primarily because the site’s coverage is so damn good. In the end, I managed to narrow things down by choosing the stories that best resonated with the themes I find most important and fascinating. Probably this is a narcissistic approach, but what the hell, Techdirt is awesome and I had to use some kind of filter.

I loved the coverage of the NSA’s latest crimes against the English language—Snowden’s leaks were “masked by his job duties” — because propaganda doesn’t work without euphemisms, meaning there’s no such thing as too much coverage of governmental linguistic bullshit. The ur text on government euphemisms, of course, is Orwell’s Politics and the English Language, which should be required reading in every high school throughout the land. For a take on more contemporary such manipulations, I shamelessly recommend my short piece, It’s Just a Leak. Because how did an undersea oil eruption become a “leak,” anyway? Not by accident, I assure you…

On a related note, I loved this fisk of the NSA’s stale talking points. It so elegantly exposes so many elements of government obfuscation: euphemisms, straw men, illogic, etc. Blogs that blow up bullshit (hmm, that sounds like a title for something potentially really fun) do a great public service, and this post is a premier example.

The article on Lavabit’s Ladar Levinson explaining how USG bullying turned him into an activist was encouraging as an example of Edward Snowden’s dictum that courage is contagious.

This post on Verizon whining about why it never even attempted to challenge government Patriot Act bulk collection demands struck me particularly because of the way Verizon’s representative Joe Stratton attempted to justify Verizon’s cowardly collaboration on “national security” grounds. The very notion of “national security” in America has metastasized into a pseudo-religion and we citizens need to be much more critical of anything the government seeks to arrogate to itself based on these quasi-religious grounds. By definition, “national security” should only refer to matters that threaten the security of the nation itself, and if you think about it, there really aren’t many events that can fit such an existential bill. As but one example: we lose something like 30,000 people a year to firearms deaths and another 30,000 a year or so to automobile deaths, and close to half a million from tobacco-related deaths, and somehow the nation manages to take the whole thing in stride. If we can lose hundreds of thousands of people a year to guns and cars and cigarettes with no impact at all on national security, how can it be that something like the Boston Marathon bombing, as tragic as it was, was a national security event? I haven’t seen much discussion of the propagandistic way the government and its proxies have deliberately metastasized “national security” for their own parasitic ends, and would like to see more of it.

Michael Hayden’s prediction that Snowden would become an alcoholic struck me as a nice example of the way establishment figures reflexively (and often successfully) brand their critics as fringe, pathetic losers. Like many techniques of propaganda, though, this one loses most of its power once you recognize it for what it is.

And I liked this piece on how the NSA is more focused on protecting its own sources and methods than it is on protecting against the next terrorist attack because… well, because it relates to the plot of my next novel. But with blockbuster revelation following blockbuster revelation, I’m not sure even the most ambitious thrillers will be able to keep up with what the government really is up to in the dark.

Barry Eisler spent three years in a covert position with the CIA’s Directorate of Operations, then worked as a technology lawyer and startup executive in Silicon Valley and Japan, earning his black belt at the Kodokan International Judo Center along the way. Eisler’s bestselling thrillers have won the Barry Award and the Gumshoe Award for Best Thriller of the Year, have been included in numerous “Best Of” lists, have been translated into nearly twenty languages, and include the #1 bestseller The Detachment. Eisler lives in the San Francisco Bay Area and, when he’s not writing novels, blogs about torture, civil liberties, and the rule of law.

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