Back in April, we wrote about an interesting lawsuit filed over excessive fees for PACER, the federal court system's electronic records system. If you're not a lawyer or journalist, and have never used PACER, it is difficult to put into words what a ridiculous and outdated system it is. Not only does it look like it was designed and built in 1998, the court system leverages ridiculous fees for everything you do in it. It's officially 10 cents per page (with a limit of $3 max per document), but that's not just per page you download of court documents, but everything. Do a search? That'll be at least 10 cents and possibly more if the magic PACER system decides the results are long enough. Look at a docket of a court case? Better hope it's not one with hundreds of filings, because just opening the docket can cost you $3 -- and that's before downloading any documents. As we pointed out years ago, the fees charged for PACER appear to be illegal. The law, 28 USC 123, that allows the court system to charge for PACER limits the fees to being "reasonable" -- and that means, among other things, that the fees are only used for the upkeep of PACER, and not for other stuff.
But that's not true. PACER brings in a ton of money and most of it is used for other things within the court system (and very little of it seems to be earmarked for actually upgrading PACER). This is a huge problem if you believe in the rule of law, and the idea that people should be able to read the law. Because the law is much more than the official regulations -- it also includes case law. And PACER has made it so that the relevant caselaw can often be inaccessible and expensive. That's crazy.
So the lawsuit that was filed earlier this year was interesting -- and of course the federal government tried to get it tossed out. Thankfully, the judge in the case, Ellen Segal Huevelle, has rejected that request and allowed the case to move forward. The government objected on two grounds: first, that a similar, but slightly different case, had also been filed by someone else -- and (more importantly) that the lawsuit failed to state a claim, because they didn't first complain to the PACER operators. Judge Huevelle doesn't buy either argument. About the two separate cases, the judge notes that the two cases are about two different things. This case is about how PACER charges too much per page under the law. The other case -- Fisher v. the United States -- (which, yes, we also wrote about) is about how PACER overcharges people when they just look at a docket. That is, the claim is that because PACER just considers every 4,320 bytes to be "a page" it is overcharging people, since dockets that are many fewer pages are being charged at higher rates. As Huevelle notes, these are different issues:
According to the class
action complaint in Fisher, “PACER claims to charge users $0.10 for each page in a docket
report” and calculates pages by equating 4,320 extracted bytes to one page, thus “purporting to
charge users $0.10 per 4,320 bytes. But the PACER system actually miscalculates the number of
extracted bytes in a docket report, resulting in an overcharge to users.”... In other words, Fisher claims an error in the application of the
PACER fee schedule to a particular type of request. In contrast, plaintiffs here challenge the legality of the fee schedule. These are separate issues, and a finding of liability in
one case would have no impact on liability in the other case. Therefore, the Court will not
dismiss the suit based on the first-to-file rule.
Personally, I think both cases have merit, but they are definitely on different issues.
As for the failure to state a claim, again, the court doesn't buy it. Here, the government argued that because when you sign up for a PACER account, you agree to all the fine print in the user agreement, and part of that says that if there are billing "errors" you "must alert the PACER Service Center." Thus, our government lawyers argue, it means that because the plaintiffs here didn't claim "errors" in their bill to the PACER Service Center, there is no legal argument here. This is a ridiculous argument. And the court recognizes that. First it notes that in the other case mentioned above (the Fisher case), the courts have already said that clause does not require you to go to PACER before suing, but more importantly, notes that this case isn't about billing errors at all. It's about whether or not the bills are legal at all:
This Court need not reach those legal issues because, unlike Fisher,
plaintiffs here do not claim a billing error. Therefore, even if the notification requirement
constituted a contractual condition, it would not apply to the plaintiffs’ challenges to the legality
of the fee schedule. Likewise, even if users were required to exhaust their claims for billing
errors, that requirement would not apply to the claim in this case. In sum, the PACER policy
statement provides no basis for dismissing this suit.
At this point, there's still plenty to go on this case -- and this is just a procedural step along the way. But it's nice to see that the court recognizes the government's ridiculous arguments for what they are.
The House Judiciary Committee has been "exploring" various copyright reform proposals for a few years now, asking for feedback, holding a "listening tour" and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA'd again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress... and creating a "small claims court" for copyright infringement. And it appears that's what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.
Note the very careful "these policy proposals are not meant to be the final word on reform in these areas." That's code for "okay, okay, we're testing the waters here, are people going to freak out about this...."
Anyway, the proposals in question are not horrible, but they're certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it's the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:
The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright
Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The
Register should be given the authority to promulgate regulations to ensure that the system works efficiently.
As we've seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn't like. Adding in the ability to more easily sue and take people to court -- even if the eventual judgment may be for lower dollar amounts -- is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle "bad faith Section 512 notices" (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it's not clear that will help very much.
Also, somewhat bizarre is that earlier in the document (which we'll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems... weird. I guess that's why they refer to it as a small claims "system" rather than a small claims "court."
The issue that's going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress' control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn't say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:
The Register of Copyrights and Copyright Office Structure
The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice
to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and
Currently, the Register is not subject to the same nomination and consent process as other senior government officials.
To ensure that the American people have an opportunity to provide input into the selection of future Registers of
Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and
consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add
several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.
Copyright Office Advisory Committees
As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have
quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies.
Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the
private sector to federal agencies. This model should be duplicated at the Copyright Office.
The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees
to advise the Register on critical issues. Members of these committees should reflect a wide range of views and
interests. Permanent advisory committees should be created that focus on issues that include but are not limited to
the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to
libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be
term limited and the ability of individuals to serve on more than one committee should be limited.
The advisory committee plan again seems like it's trying to appease all sides, but one wonders how it will work in practice. As we've seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually "promotes the progress of science" as the Constitution requires.
Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it's going to be important that we let them know the many, many pitfalls of these suggestions -- and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation -- that will not be acceptable to the public.
Sometimes you wonder just how ridiculous some legacy industries can be. The latest is the News Media Alliance, which is apparently the new name of what was the Newspaper Association of America. Just a few months ago, we were mocking that organization's ridiculous proposal that readers of newspaper websites should be forced to allow invasive ad trackers, and that adblockers shouldn't be allowed. And believe it or not, now the group has even worse suggestions. It has sent a "white paper" to Donald Trump with the types of things it's looking for from a Trump administration. The white paper is really just a 3 page memo dressed up slightly with the term "white paper" at the top -- as opposed to a carefully developed plan.
But the really ridiculous bit is that these media publications -- who regularly rely on fair use, are asking Trump to dump fair use:
Strong copyright protection is needed. Newspaper content makes up approximately two-thirds of the content on news aggregation platforms such as Google News, but many of these relatively new players in the digital ecosystem build audiences and generate revenue from newspaper content with little if any revenue coming back to those who have invested in creating the original content. Today, the news media industry invests roughly $5 billion each year in long-form investigative journalism. Our nation’s copyright laws must be structured and implemented in a way that allows for a return on this massive investment. Today, outdated interpretations of copyright laws mean that the industry is currently forced to give away much of its product for free. The government needs to put in place copyright protections that allow news organizations and other content creators to fairly benefit from their critical efforts and investments.
“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.
This is dumb on so many levels. First, the claim that newspapers don't get any revenue from the likes of Google is ridiculous, when you consider how much they whine and freak out if Google removes them from search. They get revenue in the form of traffic from aggregators. If they're bad at monetizing it, that's one thing, but that's not the aggregators' fault.
Second, copyright laws should never be designed with the idea of making sure it enables recouping an investment. Because copyright is not the business model. Copyright is a mechanism that creates a business model, and that business model may or may not be successful. Just saying you invest $5 billion and therefore copyright needs to cover that nut makes no sense. I could just as easily claim that I'm going to invest $5 billion in improving Techdirt -- and therefore Trump needs to make sure that there's a business model to allow me to recoup that? No, that's crazy. It's not the government's job to make sure your own bad business decisions still pay off.
Third: the media attacking fair use is insane. Newspapers regularly rely on fair use in their reporting, and the group is shooting itself in the foot in asking Trump to take away that tool. This is especially true given that Trump himself has insisted he wants to "open up our libel laws" with the specific aim of harming newspapers. Remember, this is the context in which he said he was going to open up such laws:
If I become President, oh, are they going to have problems. They're going to have such problems.
... One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected.
.... So we're going to open up those libel laws, folks, and we're going to have people sue you like you've never got sued before...
While he was specifically talking about libel laws, as we've seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary "safety valve" on copyright's free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech -- just as he's been promising to attack their free speech -- is ludicrous.
About the only saving grace in all of this is that Trump acts as if he hates the big newspapers so much, that perhaps he'll have no desire to make them happy by following through on this idiotic suggestion.
In the meantime, if you work for a news organization that is a member of the News Media Alliance, maybe ask them why they're undermining a core principle of free speech in asking for fair use to be limited?
from the and-they-want-access-to-our-secrets? dept
Here's today's insane story of FBI ridiculousness: the FBI has been investigating an editor at Huffington Post, Nick Baumann, for an obvious joke tweet mocking fake news. Really. To understand what happened, it requires a bit of background, especially if you're not steeped in Twitter culture -- but it's the kind of background that (1) you can pick up quickly and (2) shouldn't confuse an FBI agent... but apparently it did. Still, it requires knowledge of two separate jokes, then a third attempt at a joke... and general knowledge that the FBI doesn't seem to get jokes. Especially Twitter jokes.
First, you have to understand that there's a thing called Weird Twitter, which is... basically what it sounds like. It's more or less a group of Twitter users who post a variety of absurd or silly things, often (though not always) from accounts not naming the actual user. There's a sort of silly, but dry, sense of humor in these tweets, and unless you follow it closely, you might not always get the humor of it. Even if you are aware of it, you might not get the humor of it. But it's generally people coming up with silly tweets, some of which kick off more viral memes. Back in October, Weird Twitter person "raandy" or "@randygdub" kicked off quite a storm by tweeting a joke tweet pretending to work at a Post Office in Ohio, and claiming that he was ripping up absentee ballots of people voting for Trump.
Of course, this was back in the day when Trump and his surrogates were insisting that the election was being rigged against him and that there was going to be voter fraud. So, after it made the rounds of Weird Twitter, it left those cozy, joking confines and some Trump supporters picked up on it, believing the tweet was real. Eventually it got onto sites like Gateway Pundit and Drudge Report. Rush Limbaugh mentioned it. It was pretty clearly a joke to people who get Weird Twitter, but once foolish people started taking it seriously, suddenly Ohio's Secretary of State said he was investigating things, and the Postal Service was forced to make a statement:
Once people started mocking those who fell for it, lots of people on Twitter started making similar joking tweets, using the phrasing "I love working at [x] in [y] and [doing terrible thing z]"
So, that's joke number one. The second joke involved people passing around totally ridiculous and obviously faked Wikileaks releases claiming extremely silly things related to the conspiracy theories around Hillary Clinton. Perhaps the most well known one -- which also fooled some Trump supporters who retweeted it, was a hilariously obvious fake "Clinton Foundation accounts payable invoice" listing all sorts of groups that conspiracy theorists wanted to tie to the Clinton campaign:
Another one was the following one pretending to be from someone associated with Smartmatic voting machines telling Clinton campaign team members that things were all set to program voting machines with some special code with the help of George Soros.
This one is playing on another anti-Clinton conspiracy theory (which some people in our comments insisted was true, though it's not), that billionaire George Soros owned a company that was making voting machines that were used in the Presidential election (Soros was a big Clinton backer). The story isn't true. Soros doesn't own the company, and the machines in question weren't used in the election anyway, but... details.
Anyway, that's joke number two.
That finally gets us around to joke number three, which, amazingly, got the FBI's attention. Baumann saw an acquaintance tweet that fake "voting machine" leak (rightly noting that it was fake) and Bauman creatively decided to effectively mix the two jokes into a third joke. A mashup joke, if you will:
Get it? Got it. Baumann even explained the joke a little while later in a reply tweet, linking to one of the stories about the silly @RandyGDub tweet after some (notice a trend?) people started believing the joke was real and claiming it was evidence of voting machine tampering.
But apparently, the FBI didn't get the joke. At all. I'll let Baumann explain the next part:
One Twitter user warned that she had reported me to the FBI and to Project Veritas — a right-wing organization led by James O’Keefe that stages elaborate stings of reporters, liberals and others; heavily edits its gotcha videos; and then tries to get those people fired.
Project Veritas did not contact me.
But the FBI decided a journalist’s joke was worth its time.
On Nov. 4, I received a call from someone who said he was an FBI agent and wanted to speak to me. I figured it was a prank. I get a lot of hate emails and angry voicemails, and I dismissed the insane possibility that the FBI would investigate an obvious joke on Twitter. I would’ve called back anyway, just to be sure. But it was right before the election, and I forgot about it.
Then, on Monday, a month later, I received a followup message. It was the same person. It turns out he really is a special agent in the Washington Field Office of the FBI.
“Sorry to bother you,” he said. “The reason I’m calling is — I can’t give you too many details over the phone — we recently received some complaints regarding some online postings that were made. I don’t know if you know what that’s in reference to, but would you be willing to sit down with us for a couple minutes tomorrow morning by chance?”
I couldn’t believe it and started to say so. But he continued, “I know this may sound ridiculous, but when we receive complaints we have to follow them up no matter what.”
As Baumann notes, this isn't actually true. The FBI has every right to ignore totally ridiculous and obviously bogus reports. And, it should. Otherwise it would be way too busy chasing down conspiracy theories. The FBI agent asked to have Baumann come and talk to him, but Baumann rightly notes that when the FBI wants to talk to you, you should shut up and get a lawyer. Baumann went to his employers and got company lawyers involved (given that HuffPo is owned by AOL which is owned by Verizon, you can imagine these are pretty good lawyers).
Baumann notes some further problematic aspects to this investigation -- including that the FBI and DOJ have pretty strict rules about contacting a journalist as part of an investigation (that whole Freedom of the Press thing that the FBI has had some problems with in the past...), and it's pretty clear those rules weren't followed. And, yes, Baumann identifies himself as a journalist in his Twitter bio. And the investigation is not officially over yet, though one hopes the publication of this article gets it closed pretty quickly:
The investigation is ongoing. I hope it goes no further. As Matthew Miller, a former Justice Department spokesman, said, “When you have to guess whether it’s incompetence or something nefarious, it’s usually best to guess incompetence.” But getting a call from an FBI agent investigating you is a big deal.
And, of course, the article ends with this lovely kicker:
On Tuesday, I called @randygdub and asked him whether he had heard from the FBI about his original joke. He laughed and said he hadn’t.
Baumann also notes that he sometimes reports on the FBI, but doesn't think that this is anything nefarious in response to his reporting -- and that's probably true. But it also shows how somewhat random and arbitrary such investigations are -- and what a total waste of time and resources they can be. Is this really the best use of the FBI's time? And if they really "had" to investigate it, that investigation should have started and ended with someone doing at least a tiny bit of online researcher about the jokes in question. It's not that difficult. One would hope that the FBI employs agents who can do a fairly basic Google search before having to call for a meeting over a tweet...
It's becoming a fairly standard thing at this point: patent cases make their way up to the Supreme Court (after traveling through the patent appeals court at the Federal Circuit, better known as CAFC), then the Supreme Court smacks down the CAFC ruling and reminds the court that CAFC doesn't seem to understand patent law at all. It's happened many times, and now we've got another one with a short and sweet ruling that puts Apple's famous big patent win against Samsung at risk. As you recall, Apple sued Samsung over copying iPhone/iPad designs, and after a long jury trial, Apple prevailed and was awarded $399 million. CAFC had upheld the award, despite Samsung noting (correctly) that since the design patents only covered a small part of the device, it was ridiculous to give Apple all the profits from the entire device.
The Supreme Court, in a unanimous smackdown of CAFC written by Justice Sotomayor, points out that patent law does not require the profits to be on the entire device, but could be on separate components.
This case involves the infringement of designs for smartphones. The United States Court of Appeals for the Federal Circuit identified the entire smartphone as the only permissible "article of manufacture" for the purpose of calculating §289 damages because consumers could not separately purchase components of the smartphones. The question before us is whether that reading is consistent with §289. We hold that it is not.
In short: just because one small piece of a larger product infringes, it doesn't mean the patent holder should get all the profits.
The more weedy issue here was the definition of an "article of manufacture" which is how damages are calculated under patent law. Apple argued (and the lower courts agreed) that the single "article of manufacture" here was the total device (phone or tablet). Samsung, on the other hand, argued that there are lots of different components, each of which could be an "article of manufacture" and since it only infringed on a few distinct components, not all of the profit should be lost. As the ruling notes, it's pretty clear that "article of manufacture" can refer to just components as well as to the full product.
"Article of manufacture" has a broad meaning. An "article" is just "a particular thing." J. Stormonth, A Dictionary of the English Language 53 (1885) (Stormonth); see also American Heritage Dictionary, at 101 ("[a]n individual thing or element of a class; a particular object or item"). And "manufacture" means "the conversion of raw materials by the hand, or by machinery, into articles suitable for the use of man" and "the articles so made." Stormonth 589; see also American Heritage Dictionary, at 1070 ("[t]he act, craft, or process of manufacturing products, especially on a large scale" or "[a] product that is manufactured"). An article of manufacture, then, is simply a thing made by hand or machine.
So understood, the term "article of manufacture" is broad enough to encompass both a product sold to a consumer as well as a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture.
And, of course, there's the slap directed at CAFC's wacky and wrong interpretation of patent law:
The Federal Circuit’s narrower reading of "article of manufacture" cannot be squared with the text of §289.
Of course, in unfortunately typical fashion, the Supreme Court punts on some of the bigger questions -- including what is the proper "article of manufacture" here in this case. Instead, it just says that the lower courts used the wrong standard and kicks it back to them to try again. This means that this case, that has been going on for roughly half a decade, is going to go on even longer. Apple may still get its giant reward, but for now Samsung gets another chance to convince the courts to lower it to just the components, rather than the profit on the overall devices.
Under increasing pressure from overreacting and fearful bureaucrats, it seems that the big social media companies -- Facebook, Twitter, YouTube and Microsoft -- have all agreed to block "terrorist" content and will agree to share hashed versions of it among the other companies so something blocked on one site can easily be blocked across them all.
Facebook, Microsoft, Twitter and YouTube are coming together to help curb the spread of terrorist content online. There is no place for content that promotes terrorism on our hosted consumer services. When alerted, we take swift action against this kind of content in accordance with our respective policies.
Starting today, we commit to the creation of a shared industry database of “hashes” — unique digital “fingerprints” — for violent terrorist imagery or terrorist recruitment videos or images that we have removed from our services. By sharing this information with each other, we may use the shared hashes to help identify potential terrorist content on our respective hosted consumer platforms. We hope this collaboration will lead to greater efficiency as we continue to enforce our policies to help curb the pressing global issue of terrorist content online.
Our companies will begin sharing hashes of the most extreme and egregious terrorist images and videos we have removed from our services — content most likely to violate all of our respective companies’ content policies. Participating companies can add hashes of terrorist images or videos that are identified on one of our platforms to the database. Other participating companies can then use those hashes to identify such content on their services, review against their respective policies and definitions, and remove matching content as appropriate.
This sounds as though it's modeled on similar arrangements around child pornography. Except that there are some major differences between child pornography and "terrorist content." The first is that child porn is de facto illegal. "Terrorist content" is quite frequently perfectly legal. It's also much more of a judgment call. And based on this setup, allowing one platform partner to designate certain content as "bad" will almost certainly result in false positive designations that will flow across multiple platforms. That's dangerous.
As we've discussed in the past, when you tell platforms to block "terrorist" content, it will frequently lead to mistakes, like blocking humanitarians documenting war atrocities. That kind of information is not just valuable, but necessary in understanding what's happening.
Also, all of this presumes, that the best way to deal with so-called "terrorist content" online is to hide it and pretend it doesn't exist. That's not always the case. As we've noted, counterspeech -- including mocking silly terrorist claims -- is often much more effective than outright blocking. Blocking the content not only leads to a slippery slope -- and open questions on choosing what content stays and what content goes -- but also presumes that the block is the most effective way to stop the bad behavior associated with terrorists. But it leaves out that blocking such content often only makes those posting it feel like they're on the right path, and that they're saying something "so true" that it needs to be blocked. It's not a path towards stopping terrorism or the spread of terrorist ideology -- it just gets those engaged to dig in deeper on their views.
On top of that, terrorist information posted to social media is often a great source of intelligence for law enforcement. Even the FBI director has said it's silly to chase terrorists off of social media, because it makes them harder to track. So what good is this really doing?
Yes, platforms have every right to decide how they want to handle the content submitted to them. And, yes, this almost certainly comes about as a result of increasing pressure (especially out of the EU) to "do something" about "terrorist content" on these platforms, but as we've seen in the past, appeasing such whining bureaucrats almost never settles them down. As we recently noted, after these same four companies signed an agreement earlier this year to "curb hate speech" on their platforms, it still didn't stop government officials in Europe from threatening further legal consequences, including criminal charges, when the agreed upon blocks failed to magically make all "hate speech" disappear.
So, yes, the platforms may have felt backed into a corner, but they're only going to get their backs pushed further and further into that corner -- and the collateral damage it creates may be even more massive.
So, it seems like "fake news" is all the rage these days. As we've discussed, the sudden focus on fake news is a silly distraction. It's not likely to be changing many minds -- and the talk about fake news seems mostly to be leading to calls for censorship. And a big part of the problem is that "fake news" is such a broad and vague label. It's been applied to outright propaganda, to satire, to serious reporting, to serious reporting people don't like... and to serious, but mistaken, reporting. The problem is that when you lump all those things together, things get pretty damn messy.
Take, for example, this "fake news" story that got a lot of attention when it came out right around Thanksgiving: the Washington Post claimed that some "experts" had shown that Russian propagandists were behind the fake news explosion during the election. Which experts? The story doesn't say. What evidence? The story doesn't say. The article is focused on a brand new organization called "PropOrNot" that claimed to be run by experts, but won't identify who's involved, and the Washington Post didn't seem to care. But still it made incredibly broad claims about "fake news" and Russian propaganda.
Almost as soon as the story came out, it was being torn to shreds as being ridiculous. Mathew Ingram, at Fortune, was quick to poke holes in the story, pointing out (among other things) that various organizations that PropOrNot listed as "allies" had never heard of the organization and certainly were not working with it.
Glenn Greenwald did a thorough debunking of the Washington Post story, noting that "PropOrNot" listed all sorts of ideologically-attached websites as "fake news" just because many of the websites were not fans of Hillary Clinton. Greenwald noted how McCarthyite the whole thing was:
In casting the group behind this website as “experts,” the Post described PropOrNot simply as “a nonpartisan collection of researchers with foreign policy, military and technology backgrounds.” Not one individual at the organization is named. The executive director is quoted, but only on the condition of anonymity, which the Post said it was providing the group “to avoid being targeted by Russia’s legions of skilled hackers.”
In other words, the individuals behind this newly created group are publicly branding journalists and news outlets as tools of Russian propaganda — even calling on the FBI to investigate them for espionage — while cowardly hiding their own identities. The group promoted by the Post thus embodies the toxic essence of Joseph McCarthy, but without the courage to attach individual names to the blacklist. Echoing the Wisconsin senator, the group refers to its lengthy collection of sites spouting Russian propaganda as “The List.”
The credentials of this supposed group of experts are impossible to verify, as none is provided either by the Post or by the group itself. The Intercept contacted PropOrNot and asked numerous questions about its team, but received only this reply: “We’re getting a lot of requests for comment and can get back to you today =) [smiley face emoticon].” The group added: “We’re over 30 people, organized into teams, and we cannot confirm or deny anyone’s involvement.”
Forget that the Post offered no information about the "PropOrNot" group beyond that they were "a collection of researchers with foreign policy, military and technology backgrounds."
Forget also that the group offered zero concrete evidence of coordination with Russian intelligence agencies, even offering this remarkable disclaimer about its analytic methods:
"Please note that our criteria are behavioral. ... For purposes of this definition it does not matter ... whether they even knew they were echoing Russian propaganda at any particular point: If they meet these criteria, they are at the very least acting as bona-fide 'useful idiots' of the Russian intelligence services, and are worthy of further scrutiny."
What this apparently means is that if you published material that meets their definition of being "useful" to the Russian state, you could be put on the "list," and "warrant further scrutiny."
Forget even that in its Twitter responses to criticism of its report, PropOrNot sounded not like a group of sophisticated military analysts, but like one teenager:
"Awww, wook at all the angwy Putinists, trying to change the subject - they're so vewwy angwy!!" it wrote on Saturday.
"Fascists. Straight up muthafuckin' fascists. That's what we're up against," it wrote last Tuesday, two days before Timberg's report.
Any halfway decent editor would have been scared to death by any of these factors. Moreover the vast majority of reporters would have needed to see something a lot more concrete than a half-assed theoretical paper from such a dicey source before denouncing 200 news organizations as traitors.
The most striking issue is the overly broad criteria used to identify which outlets spread propaganda. According to PropOrNot’s recounting of its methodology, the third step it uses is to check if a site has a history of “generally echoing the Russian propaganda ‘line’,” which includes praise for Putin, Trump, Bashar al-Assad, Syria, Iran, China, and “radical political parties in the US and Europe.” When not praising, Russian propaganda includes criticism of the United States, Barack Obama, Clinton, the European Union, Angela Merkel, NATO, Ukraine, “Jewish people,” U.S. allies, the mainstream media, Democrats, and “the center-right or center-left, and moderates of all stripes.”
These criteria, of course, could include not only Russian state-controlled media organizations, such as Russia Today, but nearly every news outlet in the world, including the Post itself. Yet PropOrNot claims to be uninterested in differentiating between organizations that are explicit tools of the Russian state and so-called “useful idiots,” which echo Russian propaganda out of sincerely held beliefs. “We focus on behavior, not motivation,” they write.
To PropOrNot, simply exhibiting a pattern of beliefs outside the political mainstream is enough to risk being labelled a Russian propagandist. Indeed, the list of “propaganda outlets” has included respected left-leaning publications like CounterPunch and Truthdig, as well as the right-wing behemoth Drudge Report. The list is so broad that it can reveal absolutely nothing about the structure or pervasiveness of Russian propaganda. “It’s so incredibly scattershot,” Higgins told me. “If you’ve ever posted a pro-Russian post on your site, ever, you’re Russian propaganda.”
The most incredible thing in all this mess is that the Washington Post and its Editor in Chief have refused to comment on the article or answer the criticism at all. They've just ignored it entirely.
With such broad criteria ensnaring all sorts of websites, some of them have decided to push back. The website NakedCapitalism has sent a letter demanding a retraction and threatening a defamation lawsuit. The site Truthdig claims that it, too, has The letter argues that calling a website "fake news" is defamation:
I write on behalf of my client, Aurora Advisors Incorporated (“Aurora”), which publishes the finance and economics website Naked Capitalism (www.nakedcapitalism .com) to request that the article by Craig Timberg, “Russian propaganda effort helped spread ‘fake news’ during election, experts say” (“Fake News”) [https://www.washingtonpost.com/business/economy/russianpropaganda-effort-helped-spread-fake-news-during-election-expertssay/2016/11/24/793903b6-8a40-4ca9-b712-716af66098fe_story.html] published by the Post on Thursday, November 25, be immediately removed from your website and all web-accessible archives. Fake News contains extremely damaging false allegations constituting defamation. Furthermore, Aurora asks for a prominent public apology for the false and defamatory accusations made in Fake News and for an equally prominent (i.e. not in a “Comments” section) opportunity to respond.
You began Fake News with the sensational claim: “The flood of ‘fake news’ this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy,” and attributed this claim to “independent researchers who tracked the operation.” Naked Capitalism is one of the accused organizations in PropOrNot’s report, which, contrary to Fake News’ claim that the report had not been published, was available on the Internet well before Fake News ran. [http://www.propornot.com/p/the-list.html] This error should be corrected.
You identified and thus denigrated Naked Capitalism, one of the sites targeted in the “study” as one of the “right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers. The effort also sought to heighten the appearance of international tensions and promote fear of looming hostilities with nuclear-armed Russia.” You called upon Facebook and Google to “crack down on ‘fake news,’” apparently by censoring Naked Capitalism, because it is supposedly “attack[ing] American democracy.”
Your identification of Naked Capitalism as a “fake news site” and as an agent for Russian propaganda designed to undermine American democracy is defamatory per se. You accuse Naked Capitalism of spreading “Russian-backed phony news to outcompete traditional news organizations for audience.” These serious allegations have caused and will continue to cause great harm to Naked Capitalism, including but not limited to damage to policy impact and reputation, diversion of scarce reporting and managerial resources to respond to concerned inquires and debunk this smear, loss of readers, and damage to the site’s profitability. Moreover, writers and editors associated with Naked Capitalism face ridicule, emotional distress, loss of reputation, and risk to future career advancement, including for example, difficulty passing background and security checks
The letter goes on (and on and on) from there, but I don't see how any of what the Washington Post did was actually defamatory. Stupid, wrong and misleading? Yup. Absolutely. But to reach the level of defamation would take a lot more. Also, the Washington Post didn't actually name the sites NakedCapitalism or Truthdig. Both of those were just on the separate (ridiculous) list that PropOrNot published. So writing about PropOrNot (even, stupidly repeating its bogus and silly claims) doesn't automatically make you liable for PropOrNot putting sites on a list. On top of that, it's unlikely that even PropOrNot directly is liable for defamation for putting sites on a "Fake News" list. While there have been some cases here and there about whether putting companies on a "spammer" list is defamatory, in the US, merely putting people on such a list is likely to be protected speech -- especially when the list is for something as vague as "propaganda."
So, no one comes out of this looking very good. The Washington Post looks completely ridiculous. PropOrNot and whoever is behind it look like a joke. But even NakedCapitalism comes off looking a little silly by pulling out the defamation threat. Calling for a retraction is fine and sensible. Mocking the Washington Post, its reporter, and PropOrNot is totally fair game. But what the Washington Post did was just really ridiculously bad reporting. Not defamation.
And, thus, we're back where we started. In some circles, what the Washington Post did was "fake news." And, no, the Washington Post shouldn't claim it's defamatory for us to say that either. In fact, this only serves to highlight what a useless term "fake news" is to describe some very, very different situations. Bad reporting is bad reporting and should be called out as such. Propaganda should be called out as such. Made up stories for clicks should be called out as such. "Fake news" is too broad and a useless categorization. But, really, the Washington Post should have known better -- and should have taken down that article by now and apologized for it.
A legal dispute that goes back in some form or another to at least 2001 has resulted in the 5th Circuit Appeals court thankfully reminding people that patent infringement is actually good for competition. To say that the details and background of this case are confusing and convoluted would be... quite an understatement. If you want to read the background in the full ruling, go ahead, but I'd recommend bringing along a white board, a compass and a large Thermos of coffee. Let's just say that two companies that make different versions of retractable syringes, RTI and BD, have been less than happy with each other for many years, and there have been some lawsuits covering a variety of different theories for why RTI doesn't want BD selling safety syringes (or, if not stopping the company from doing that, compelling it to fork over lots of money to RTI). There have been patent claims, antitrust claims, unfair competition, false advertising and some more. It's... convoluted. While the court's background explanation is convoluted as anything, where things came down recently was that RTI argued that BD's patent infringement (which had already been ruled on by the court earlier in this neverending saga) was also a form of an antitrust violation. Even this part is confusing, because RTI has a few different reasons for why it argues BD is violating antitrust law, with only one of them being its infringement of RTI patents.
Of course, if you're playing along with the home game, you should already be scratching your head. After all, patents themselves are monopolies. So, if anything, you'd think that any antitrust argument would be focused on the patent holder rather than the patent infringer. But, here, RTI is arguing that the patent infringement itself is a form of an antitrust violation, as it's part of BD's effort to foreclose competition. But... again, that makes no sense, and the appeals court rightly calls this out and notes that patent infringement doesn't block competition -- it actually increases competition:
Patent laws are designed to secure for patent holders a time-limited exclusive right to exploit their discoveries, but this is “not the kind of public purpose protected by the antitrust laws,” which seek to “protect the free flow of interstate commerce.”... That a patentee may anticompetitively extend its market power to products other than those covered by a patent, and thus violate the antitrust laws, is well settled... RTI, however, cites no case holding the converse: that antitrust liability may be founded in whole or in part upon patent infringement. By definition, patent infringement invades the patentee’s monopoly rights, causes competing products to enter the market, and thereby increases competition. RTI, in fact, persuaded another jury of exactly this procompetitive result when it proved patent infringement by BD’s 1mL Integra safety syringe. The judgment against BD, which was then forced to remove the competing product from the market, diminished competition but enforced RTI’s patent rights.
Of course, this doesn't mean that patent infringement is legal -- it's not. But at the very least, the court is shutting down the positively nutty argument that patent infringement might also be an antitrust issue, even though it increases competition rather than decreases it.
Last week, we wrote about the atrocious treatment of famed Canadian reporter Ed Ou by the US's Customs & Border Patrol agents. Ou was on his way to document the protests over the Dakota Access Pipeline and he was detained, had his devices confiscated and searched, and then was denied entry into the US. And, of course, as we've seen before in similar stories, Homeland Security's response to these sorts of stories is to shrug and basically say "we don't have to tell you anything."
Turkey’s General Directorate of Press and Information (BYEGM) on Friday accused countries critical of Turkey’s media environment of turning a blind eye to press freedoms in their own jurisdictions.
Research compiled by the body questioned Western states’ claims that freedom of the press was unlimited in their countries.
Recalling that among the countries frequently criticizing Turkey were France, Germany, the U.K., Sweden, Spain, the Netherlands and the U.S., the BYEGM research questioned whether journalists and other media workers were able to work freely in these nations.
The research presented examples of constraints and censorship faced by media workers in those countries.
And, of course, one of the examples used, is what US Homeland Security did to Ou, among other examples, including the arrests of journalists covering the protests in Ferguson, Missouri, two years ago.
Friday’s BYEGM statement recalled an incident in October involving a Canadian journalist called Edward Ou who wanted to shoot video of Native Americans protesting against a pipeline planned for Dakota state in the U.S.
"He [Ou] was not allowed to enter the U.S.," the BYEGM said, adding: "Edward Ou was held at the border for six hours and during this time his telephone and cameras were confiscated.”
In the U.S. “14 journalists, including Anadolu Agency, Die Welt and Bild correspondents” were arrested amid unrest in Ferguson, Missouri, following the fatal police shooting of a black man in 2014.
The BYEGM went on to state: "In Baltimore incidents, City Paper's photo editor JM Giardano was beaten by the police and photographer Sait Serkan Gurbuz, who was working for Reuters, was taken into custody.”
In July 2016 the Middle East correspondent of the Wall Street Journal, Maria Abi-Habib, “was taken into custody by the U.S. Department of Homeland Security on the grounds that she was a journalist 'traveling dangerous locations'".
Of course, there's a massive difference in the (yes, wrongful) arrests and detainment of journalists in the US over reporting with the purposeful jailing of journalists, including charging some with horrific crimes, in Turkey. But by not stopping this ridiculous bad behavior, such as what happened to Ou with border agents, we're handing Turkey and other authoritarian regimes an easy excuse to continue their efforts to completely eradicate a free and open press.
It appears that the "nerd harder" disease has spread across the Atlantic, and none other than the UK's Health Secretary, Jeremy Hunt, has caught it. In discussing the (frequently overhyped, but still real) issues of cyberbullying and sexting, Hunt has decided that it's no problem at all, because the nerds can put their minds to it and magically block it:
“I think social media companies need to step up to the plate and show us how they can be the solution to the issue of mental ill health amongst teenagers, and not the cause of the problem,” he said. “There is a lot of evidence that the technology industry, if they put their mind to it, can do really smart things.
“For example, I just ask myself the simple question as to why it is that you can’t prevent the texting of sexually explicit images by people under the age of 18, if that’s a lock that parents choose to put on a mobile phone contract. Because there is technology that can identify sexually explicit pictures and prevent it being transmitted.
“I ask myself why we can’t identify cyberbullying when it happens on social media platforms by word pattern recognition, and then prevent it happening. I think there are a lot of things where social media companies could put options in their software that could reduce the risks associated with social media, and I do think that is something which they should actively pursue in a way that hasn’t happened to date.”
And I ask myself, how the hell do modern countries allow people so clueless and ignorant into positions of power? How can it possibly be that someone with this much power and authority can't understand that context matters and that calling for outright censorship without context would be a disaster? It's the very epitome of the "nerd harder, nerds" plan that comes up so often. "If they put their minds to it, they can do really smart things."
It feels like all of these powerful people have internalized the flipside of the famed Arthur C. Clarke quote about how "any sufficiently advanced technology is indistinguishable from magic," and interpreted it to mean "tech can do magical things." But as cryptographer Matt Blaze famously noted, ignorant officials saying "surely if we can put a man on the moon we can do this" is like saying "surely if we can put a man on the moon, we can put a man on the sun." Some things are not doable, no matter how many nerds you throw at it.
You'd think that people in charge of, say, the healthcare of a nation, might at least recognize when they're too ignorant to understand the difference between the possible but difficult, and the impossible. Apparently not.
A couple weeks back, we wrote about a ridiculous and massively overbroad demand from the IRS that virtual currency exchange/online wallet host Coinbase turn over basically all info on basically all Coinbase users. They did this because they saw evidence of a single person using Bitcoin to avoid paying taxes. Coinbase expressed concern over this, but Judge Jacqueline Scott Corley didn't seem too concerned, and has granted the IRS's request by literally rubber stamping the DOJ's request. I know it's not all that uncommon for judges to accept "proposed orders" but it's still a bit disturbing to see it happen on something with potentially massive consequences.
Coinbase has indicated that they're going to push back on this legally, but it's still quite unfortunate that the judge didn't seem all that concerned about this. While Coinbase says it expected the court to grant this order, and that "we look forward to opposing the DOJ's request in court," it's unfortunate how quick judges are to agree to these kinds of orders. Either way, this is going to be a case to follow.
As we mentioned last month, the Copyright Office -- despite being warned this was a bad idea -- has decided to implement a brand new system for websites to register DMCA agents, and has done so in a way that will undoubtedly fuck over many websites. It's already ridiculous enough that in order to be fully protected under the DMCA's safe harbor rules (that say you're not liable if someone posts infringing material to your website), you need to register a designated "DMCA agent" with the Copyright Office. The idea behind this is that by registering an agent, copyright holders will be able to look up who to send a takedown notice to. And, sure, that makes sense, but remember that this is the same Copyright Office that supports not requiring copyright holders to register their works, meaning that there may not be any legitimate way to contact copyright holders back.
The reason for the new system is that the old system was just ridiculous -- on that everyone can agree. You had to fill out a paper form, sign it, and send it in. The Copyright Office has been way behind on digitizing everything, so moving to a web based system is a good thing. Also, the old system required payment of over $100, while the new one is just $6. That's all good. The problem is twofold: first, the Copyright Office has said that it is throwing out all the old registrations, and if you want to retain your safe harbors, you need to re-register. There's a grace period through the end of next year, but plenty of sites who don't follow the Copyright Office's every move are going to miss this, and will no longer have an officially registered agent with the Copyright Office (it's possible that, should this issue go to court, a platform could reasonably argue that it still did meet the statutory requirements in the original registration, but why force site owners through that hoop in the first place). The second problem, is that this new system will toss out records every three years, so if you forget to renew, you once again can lose your legal safe harbors. This puts tons of websites at serious risk, removing key protections and opening them up to lawsuits from copyright trolls.
Either way, the Copyright Office opened the doors on the new system yesterday, and so I went ahead and re-registered Techdirt. And, let's just say, the Copyright Office has a reputation for being technically clueless, and boy, does it live up to that reputation with its new system -- though, to be fair, as the Copyright Office's General Counsel reminded me on Twitter, it's actually the Library of Congress that built the system. First off, to register a new agent, you need to first register with the Copyright Office's system. As Eric Goldman points out, the system is not designed for individuals or sole proprietorships, even though those people should be able to get DMCA safe harbor protections as well. Specifically, to register, it requires an organization name and a "second contact" name and information. I'm not sure what individuals should do, other than maybe make something up -- though, before you even get started, the system pops up a warning suggesting that you may face criminal charges under the CFAA if you do anything wrong (while it means if you try to hack the system, the wording may confuse many people not familiar with the law). Nice touch.
Oh, and then there's the password system. Like many people, I use a password manager, which also will generate strong passwords for you. I went through the process of filling out my info, and generated a strong password... and I got back an error message. It seems that the Copyright Office has taken what used to be considered best practices, and then took it to an insane extreme:
First of all, the US government, in the form of NIST, recently released new guidelines for password policies for any US government websites. And the Copyright Office ignores them, because whoever designed the new DMCA system seems to not give a shit and not be even remotely aware of good security practices these days. Here's what the new rules say:
No composition rules. What this means is, no more rules that force you to use particular characters or combinations, like those daunting conditions on some password reset pages that say, “Your password must contain one lowercase letter, one uppercase letter, one number, four symbols but not &%#@_, and the surname of at least one astronaut.”
Let people choose freely, and encourage longer phrases instead of hard-to-remember passwords or illusory complexity such as pA55w+rd.
So, yeah, nice job Copyright Office for ignoring what you're supposed to do. Second, even if those rules did make sense, by lumping together all of them, and then adding the absolutely ridiculous and bad security practice of saying "must not have any repeated letters, numbers, or special characters," you actually reduce randomness and make passwords less secure. This is just bad security.
To deal with this rule, I generated a much longer password, and then manually went through and removed any repeated letters, numbers or special characters, and made sure that all of the other rules were met. They were. I hit submit. The system rejected it, and gave me the exact same error message. I tried again. Same problem. I kept trying things for about 20 minutes until I figured out what the problem was. You see above, where it says "and special character "!@#$%^&*()""? Well, in my first attempt at a password I had two special characters: ? and >. I incorrectly assumed that when they say "special character" they mean any special character on the keyboard, and not just those limited to the ones above the number line on your keyboard. Once I realized that might be the issue, I still had a problem. And that's because my new password had " as a special character. I incorrectly assumed that was okay because it's in that list above, right? Except, no, it's not. It's just put around those symbols for no reason at all except to fool people. It would be nice if the error message actually told you that you could only use those characters and that the " wasn't included. Would have saved me a lot of time.
Once I finally finished that, the system sent me a confirmation/validation email (good), which I used to confirm my email and log into the system... only to discover that everything I had just done... was not actually registering a DMCA agent. It was just to register your account to use the Copyright Office's DMCA system. So I had to then go and fill out another form to register our DMCA agent (and I won't even get into the fact that once you've activated your account, the message telling you to "click here" to login to designate an agent makes it so that it's not at all where to actually click -- great design guys!).
Finally, once I'm all registered, and despite the fact that I'm very clearly registered in the United States, the system says I'm in Canada. Because, apparently, the genius IT staff thinks that the "CA", which everywhere else means California, means Canada in their own system. Because whatever, nothing matters.
So, yes, I eventually paid my $6 and got registered, but lots of people won't and lots of sites are now going to expose themselves to bogus lawsuits. And for those who do get through this process, you may end up in Canada. So anyway, off we go to this new era, in which websites are much more at risk of losing their safe harbor protections, and to make it more fun, the system you need to use to register yourself is buggy as hell with a bunch of bad design practices. It's almost as if they want websites to lose their safe harbors. Considering that the key role of the Copyright Office is to register stuff (the boss of the office is literally called "The Register"), it seems fairly ridiculous that they make it so difficult to register DMCA agents, and then force renewal every three years (while at the same time insisting that any renewal requirement for copyright holders would go against the natural order of things and bring famine and pestilence upon the land).
We've been a lot more skeptical than most about all the claims of "Russian interference" with the US Presidential election this year. While I don't doubt there was some effort to do something, Russia is such an easy scapegoat. Still, plenty of people insist that it's true, including those who at least should have a fair bit of insight into what actually happened. To me, the bigger issue is that attribution in many of these things is a lot more difficult than most people make it out to be.
Either way, it's quite noteworthy that seven Senators on the Senate Intelligence Committee have asked President Obama to declassify the evidence pointing to Russia and detailing what Russia actually did to attempt to interfere with the election. The Senators sent a very simple letter, which was released publicly, noting that a classified letter with a lot more details was also sent. Here's the entire text of the publicly released letter:
Dear Mr. President:
We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.
Thank you for your attention to this important matter.
Of course, it needs to be noted that this will clearly be seen as a partisan effort. Of the seven Senators who signed on to the letter, six are Democrats, and the other, Senator Angus King, is an Independent who caucuses with the Democrats. Basically it's all of the Democrats on the Senate Intelligence Committee except for Dianne Feinstein and Harry Reid. So, it's easy for some to spin this as a case of sour grapes about the Democrats not winning the election, and that they're now clinging to stories of Russian interference to explain what happened.
But... that spin holds somewhat less weight when you look at the details. First off, the letter itself was put together by Senator Ron Wyden. And, yes, his name comes up a lot around here, but that's because he has a pretty long history of being right on lots and lots of stuff. And that's been especially true when Wyden says that there's some secret info that the public deserves to know about. He's been right on that every single time he's said it. So the track record is there. When Wyden says the public deserves to know something, pay attention.
The second thing that provides more confidence here is that this isn't just random conspiracy theories about "rigged" voting or whatever that some have been spewing. This is a specific request for more transparency by asking for specific information to be released to the public -- specific information that the Senate Intelligence Committee members have seen.
Given that, it seems worth paying attention to -- and at least asking why the President won't declassify such information? If there really is such strong evidence, why not reveal it? So far, all of the evidence pointing to Russia has been fairly weak, and it feels a bit like groupthink that everyone just insists it's true. But it's entirely possible (and perhaps now, probable) that the intelligence community has some more serious evidence. And, if that's the case, it seems worth sharing with the public even if you were happy with the outcome of the election. If Russia really did "interfere" somehow in the election, the public deserves to know the details of it.
Could President Obama actually declassify and release the full 6,800 page report on the massive failures of the CIA's torture program from a decade ago? While it seems unlikely, Senator Dianne Feinstein is urging the President to release the document, fearing that the massive report may disappear into the memory hole soon.
Some background: While Feinstein has been historically awful on basically anything having to do with reining in the US intelligence community, the one area that really seemed to get her attention and raise concerns was the CIA's torture regime. She assigned Senate Intelligence Committee staffers to work on a massive and detailed report on the CIA's torture program after it came out that a key official involved in the program had deliberately deleted videotape evidence about the program. The research and writing of the report went on for years and cost millions of dollars, and then resulted in another big fight over releasing a heavily redacted version of just the executive summary of the report (not to mention that the CIA also broke into the staffers' computers after it realized it had accidentally given the staffers a really damning document). The fight over releasing the paper was really, really ridiculous.
There were fights over what ridiculous things to redact, and then the White House put on a full court press against releasing the document, insisting that publicly releasing even a heavily redacted executive summary would inspire terrorist attacks. Even after an agreement was reached on the redactions, John Kerry still tried to block the release, again warning of potential attacks in response.
Eventually the heavily redacted executive summary was released, revealing what many had suspected: the CIA's torture program was a complete waste, providing nothing in terms of valuable intelligence, and also involved the CIA lying to Congress. Since then, though, there have been ongoing battles over the report. Also revealed: what a bunch of bullshit the claims were that the release of the report would inspire new attacks. It's been two years and there's no evidence the report inspired any hatred beyond what was already present.
While Feinstein made sure copies of the full report were delivered to various parts of the executive branch, insisting that the report should be read so that we don't repeat the mistakes of the past, most of them claim they never read it and also that there was nothing to learn from it. Then, after Senator Richard Burr took over the Senate Intelligence Committee he began to demand that the various copies of the report all be returned so they could be completely destroyed, erasing all of that evidence and reporting on the CIA's torture program. The CIA claims it "accidentally" deleted one of its own copies.
The ACLU tried to FOIA the full document but was rejected... and the courts refused to force the government to release the document.
There's every indication that a President Trump would have zero interest in releasing such a report, and probably would support the destruction of the remaining copies. And, because of that, it appears that Senator Feinstein is calling on the President to declassify the whole thing.
I think people need to see the full facts of the report. I believe they stand on their own. And I think it's very important, particularly since there is discussion or talk or allegations about - well, we're going to resume waterboarding, and, yes, we can torture people.
As the report at NPR notes, during the campaign, Trump eagerly endorsed bringing back the torture program, specifically calling out waterboarding and suggesting going even further than that.
Once again, here's an opportunity for President Obama to actually do something that would make a powerful statement before handing over the White House. Not only would it help provide tremendous transparency into a shameful episode in our very recent history -- a shameful episode that is at great risk of being repeated -- it would also prevent the report from being totally destroyed. As the NPR piece notes, Senator Burr is still fighting to get back the document to destroy it. That means there's a very good chance that if President Obama doesn't get the full torture report declassified, it will disappear forever. Of course, given the White House's (ridiculous) attempts to block the release of the exec summary, combined with Obama's terrible track record in letting the intelligence community get away with all sorts of stuff, I wouldn't hold my breath.
For this week's podcast -- our 100th episode -- we have both a special guest and an announcement. On the podcast, we have Jack Conte, the founder and CEO of Patreon, a fascinating company that we've written about a few times, for providing a really compelling platform for connecting content creators and fans, and giving those fans a way to support the creators. And with that conversation, we're also launching a Techdirt Patreon page and asking for folks to support our continued efforts to make great content. The Patreon campaign is focused on the podcast, but you can use it to support Techdirt as a whole if you'd like. If you don't actually listen to the podcast, there's still a good reason to support it: if we get enough support via Patreon, we'll use it to fund transcripts of the podcasts, so those of you who would prefer to read it can do so.
As we've discussed a few times recently, the online advertising market has seen the bottom fall out of it. And that means we need to rely on other forms of support much more regularly -- including affiliate sales and direct crowdfunding. Frankly, direct crowdfunding is certainly the most pure of these options. It builds a stronger connection between us and our community and removes any whiff of third party interference in that relationship. In the past, we've done time-limited campaigns, and we may do that again as well, but I've been writing about Patreon since it launched (and Jack Conte since long before that), and have been impressed with how the platform has grown and changed over time -- and am also impressed with Jack's vision for where the company can continue to go (some of which you can hear in the podcast discussion).
Anyway, I hope many of you will agree to support us via Patreon. We have a variety of perks we're offering -- some of which we've offered directly in our Insider Shop for years, but some of which are new and unique to the podcast -- including a special backers' only episode that we'll be releasing in January. We have lots of stuff we'd love to do, with both the podcast and the website, and plenty of great stories to tell, but we need your help to do it. Please support our efforts.
The Church Committee, of course, was the Senate Committee that investigated excessive surveillance efforts by the CIA, NSA and FBI in the 1970s, and eventually led to a series of sweeping reforms that helped to rein in many of the worst abuses. Of course, after 2001, many of the restrictions were watered down, which gets us to where we are today. It's also notable, of course, that the Church Committee eventually morphed into the Senate Select Committee on Intelligence, better known today as the Senate Intelligence Committee. Yes, if you're a bit confused, the committee that was created to stop intelligence community surveillance abuses changed over the years into becoming the intelligence community's biggest defenders, rather than overseers. Today's Intelligence Committee (minus a few members) seems 100% focused on whining about Snowden. So it's fairly telling that the members who made up some of the key staff positions on the original committee are now speaking out.
The letter was put together by Frederick Schwartz, who was the Chief Counsel of the Church Committee and William Miller, who was its Staff Director (i.e., these weren't lowly staffers -- these were the guys who ran the show). And they're pretty damn concerned. The full letter is worth reading, but here's just a small excerpt:
Without Snowden, it would have been decades, if ever, until Americans
learned what intelligence agencies acting in our name had been up to. We know first
hand that lack of disclosure can cause just as many, if not more, harms to the nation than
disclosure. When intelligence agencies operate in the dark, they often have gone too far
in trampling on the legitimate rights of law-abiding Americans and damaging our
reputation internationally. We saw this repeated time and time again when serving as
staff members for the U.S. Senate Select Committee, known as the Church Committee,
that in 1975-76 conducted the most extensive bipartisan investigation of a government’s
secret activities ever, in this country or elsewhere.
They also point out the hypocrisy of Obama and his administration ignoring or granting leniency towards others who abused positions of power in the surveillance state, and who did so not to benefit the public, as Snowden did:
Some oppose leniency for Snowden because he violated the law. But
many in the national security establishment who committed serious crimes have received
little or no punishment. President Obama’s decision to “look forward, not backward”
absolved from liability the officials who designed and implemented the torture and
extraordinary rendition programs at the CIA and Defense Department during the George
W. Bush Administration. It also meant that those who destroyed evidence of these
crimes and misled Congress about illegal torture and surveillance would never face
In addition, the government has also been lenient to high-level officials
who made illegal disclosures or destroyed classified information. Examples are cases
involving National Security Advisor Sandy Berger and CIA Directors David Petraeus and
CIA Director David Petraeus, who also had been a top general, violated
the law and his obligation to protect national security information when he provided his
biographer, who was also his close friend, with voluminous notebooks documenting Top
Secret military and intelligence operations, as well as sharing classified information with
reporters. He also made false statements to the FBI to avoid accountability for his
actions. Yet he was allowed to plead guilty to just one misdemeanor for which he
received no jail time. Former National Security Advisor Sandy Berger broke the law
when he removed several highly classified documents sought by the 9/11 Commission
from the National Archives and then destroyed them. He too was allowed to plead guilty
to a misdemeanor and received a fine and probation. President Bill Clinton pardoned
former CIA Director John Deutch before the Justice Department filed a misdemeanor
charge against him for improperly taking hundreds of files containing highly classified
information and storing them on an unprotected home computer. In all these cases,
recognition of the public service the individuals had provided weighed against strict
enforcement of the law, to come to a fair and just result.
There are, of course, differences between these cases and Snowden’s. But
the crucial point is that only in Snowden’s case was the motivation behind his illegal
activity to benefit America. The three others involved efforts to gain glory or avoid
criticism, or simple convenience and simple disregard for the law that put our security at
risk. Yet the perpetrators were treated leniently.
The memo goes on to explain why people claiming Snowden should have gone through "the proper channels" don't know what they're talking about, by pointing to the examples of those who did follow those channels, only to have their lives ruined with bogus Espionage Act cases. Of course, I'm not sure how that will appeal to Obama, since he supported those cases.
Still, it's good to see these individuals, who know perhaps better than anyone what happens when you have a surveillance state run amok, explaining to the President why what Snowden did was so important, and why he deserves a pardon.
While we knew it was impossible for President Obama to truly rein in the massive executive powers that he helped expand (following on the massive expansions from previous administrations) concerning national surveillance and war -- we had still hoped that maybe his concern about a President Trump would let him do a few small things to limit some of the most egregious powers. Instead, it appears that President Obama is doing the opposite, and expanding his war powers, just as he's about to hand them to someone that he, himself, has loudly criticized as being unfit for the Presidency.
For years now, we've written about how the Obama administration has regularly rewritten the dictionary in order to pretend that the Authorization to Use Military Force (AUMF) hastily granted by Congress in the wake of 9/11 enabled him to go to war with basically anyone. If you don't recall, the AUMF granted the President the power to use "all necessary and appropriate force" to go after those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." That's already fairly broad, but over the years basically our entire government has pretended that (1) the AUMF included the ability to also target "associated forces" (even though it does not) and (2) it allowed the President to simply lump in anyone he wanted as an "associated force" allowing him to bomb them without any Congressional authorization. This is how you get a war without end, in which the explicit authorization to go after Al Qaeda is now being used on a surprisingly long list of groups that didn't even exist in 2001.
And, just a few days ago, President Obama expanded the list yet again, allowing himself to go after yet another group: Shabab. Now, no one is trying to claim that Shabab, or ISIS or any other group that has been added to the list aren't out to do serious harm to the US. But, this seems to go way beyond the basic functions of the office of the President and the simple Constitutional requirement for Congress to declare war. As Trevor Timm notes at the Guardian, this is a big deal:
Council on Foreign Relations senior fellow Micah Zenko didn’t mince words in the Times when describing what the Obama administration is doing: “It’s crazy,” he said of the administration’s redefining the law out of existence. “This administration leaves the Trump administration with tremendously expanded capabilities and authorities.”
Make no mistake: Trump will have a free hand to use the law meant for the perpetrators of 9/11 to wage war around the world, fashioning it to different enemies at his command, and he will be able to point to precedent set by the Obama administration as he does it.
Per usual, all the White House’s decisions are being made under the veil of official secrecy. The only reason we know about it is not because the administration announced it, but because the New York Times reported it after unnamed officials leaked it to them.
Trump is now coming into office with ever expanding war powers, and they’re being served to him on a silver platter by the same people who told the American public two months ago that Trump was so unstable and thin-skinned that he couldn’t be trusted with the nuclear codes.
This isn't about which President or which party you support. It seems like we should all be concerned with the ever growing power of the executive branch in general, and especially its willingness to grant itself more powers to go around and kill people.
Media critic Michael Wolff has a fairly long history of being hilariously wrong about just about everything. It's sort of his thing. He also has a history of being a ridiculously bad journalist in those rare moments when he tries to do journalism. We normally ignore him, but last week he said something so ridiculous and so crazy, that it deserved calling out. He called on journalists to be stenographers to those in power. Literally.
I think what’s required is for the media to do its job. I feel deeply the media hasn’t done its job. It’s abdicated its responsibility, has lost itself somewhere. Right now it’s an interesting moment where the media looks at Donald Trump as a threat instead of a story, possibly the biggest story of our time. Certainly a story that needs to be told in rather conventional ways. Who are these people, what motivates them, where are they from, where are they going — just basic storytelling.
I thought these people have won an election, so now is the time to go in and say who are you and what do you think. We are not in an oppositional moment right now; that has passed. I actually asked very few questions. I said tell me who you are. He talked and I took notes. Yes, you do want to be stenographers. That’s a very significant piece of journalism. We don’t want to hear [the reporter]. Write it down. You’re there to literally convey what someone in power says, and you bring it to people who want to know. Journalism is now a profession filled with people who are not journalists. They’re all under 25, talking to people under the age of 25. Let me send the message: stenographer is what you’re supposed to be.
[The move against normalizing Trump actions and language] are just institutional biases. This is formally saying we are biased and want to be biased, we are judge and jury.
This is wrong and idiotic on so many levels. First of all, a big part of the problem is that journalists have been stenographers for way too long. Their ridiculous "view from nowhere" where "person A says X, but person B says Y" journalism, without ever delving which is correct between X & Y, is a huge part of the problem. Calling bullshit on bullshit is not "bias." It's called accurately informing people. But Wolff apparently thinks we've had enough of that.
For years, calling journalists "stenographers" was a punchline to highlight how feckless many journalists had become, where they looked to pull punches to retain "access." There's a reason you have lots of articles online mocking journalists because they became stenographers. There's a reason that Stephen Colbert got such big laughs by calling White House correspondents stenographers. Because it was all too accurate:
Let's review the rules. Here's how it works. The President makes decisions. He's the decider. The Press Secretary announces the decisions. And you people of the press type those decisions down. Make. Announce. Type. Just put 'em through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you've got kicking around in your head. You know the one about the intrepid Washington reporter with the courage to stand up to the administration. You know: fiction.
Back when he performed that, it was satire. Now here's Wolff saying the same thing seriously. This is how far we've come.
The good thing about this election was that it finally shocked some reporters out of this mode, and it's insane to argue that that was the mistake. There is some truth in the fact that reporters got too focused on Trump, the person, as opposed to focusing on actual issues and policies, but to argue that they should just be stenographers is insane. Politicians thrive on misleading the press and Trump is an expert at it. He's the king of "hey, look over there" whenever any legitimate story against him comes out. He plays the press like a banjo. And, while I'm not convinced they'll figure out how to counter that and to do what the real press should do -- which is hold Trump accountable -- the idea that their role should be stenographers is insane.
I didn't quite think it was possible, but it seems that the fight over some potential election recounts has served to basically make everyone look petty and awful. American politics continues to be a dumpster fire. Here is the latest, in three acts.
Act One:Jill Stein to the rescue?
Last week, there was a bit of a fuss, starting with a mostly detail-free article from NY Mag suggesting that some well-respected voting researchers had found some abnormalities, and were suggesting that the Clinton campaign seek a full recount in three key states (Wisconsin, Pennsylvania, and Michigan). After that started to get some buzz, the key e-voting researcher named in the article, Alex Halderman clarified that he didn't actually think there was any foul play, but that, since we all recognize there are security problems with e-voting machines, this could serve as a useful check. As we noted at the time, there was really no way for the Clinton campaign to take this on without much more realistic evidence of fraud, or else it would look incredibly petty and ridiculous -- especially given the concerns the Clinton campaign raised about Donald Trump potentially contesting the election results.
But, into the breach stepped Green Party candidate Jill Stein, who set up a crowdfunding page to see if people would donate to pay for the recounts in those three states (if a candidate requests a recount, they have to fund it). Stein claimed that she wasn't doing this to help Clinton, but as part of the Green Party's support for "election integrity." And, sure, yeah, we're all for election integrity, but Stein's crowdfunding campaign is a bit of a scam. She's preying on false hopes of Clinton supporters to raise a ton of money -- likely approximating twice as much as she raised during her actual campaign. And, for what? No one's entirely sure. Yes, some of the money will go towards demanding recounts, but those recounts might not happen. Instead, the Stein campaign can put in an official request for one, but that's no guarantee. And the Stein campaign just says that if it ends up with more money than it needs, it will "also go toward election integrity efforts and to promote voting system reform." But, without details, it's not at all clear what people are really donating to -- other than building a massive list for the Green Party of potential people to hit up for money in the future.
On Friday, Stein filed the first of these recount requests in Wisconsin, in which her campaign alleges "evidence of voting irregularities" even though there really isn't any. It's basically a made-up request that tosses in a dose or two of conspiracy theory about "foreign interference" in the election. Again, while I'm all for election integrity and am concerned about e-voting machines, alleging fraud without any real evidence is just conspiracy theory mongering.
Act Two: Hillary Clinton: well, okay, if we must...
After the money started flowing to Stein, the Clinton campaign, in the form of a Medium post from the campaign's top lawyer, Marc Elias, said that the campaign would somewhat reluctantly get involved in any recount effort. This is after admitting that the campaign found no evidence on its own of fraud and hadn't intended to ask for such a recount at all, despite a multi-pronged approach to review voting information to see if anything looked fishy. But, now, Elias claims that since Stein got the ball rolling, the Clinton campaign will get involved "just to be represented" in any effort:
Because we had not uncovered any actionable evidence of hacking or outside attempts to alter the voting technology, we had not planned to exercise this option ourselves, but now that a recount has been initiated in Wisconsin, we intend to participate in order to ensure the process proceeds in a manner that is fair to all sides. If Jill Stein follows through as she has promised and pursues recounts in Pennsylvania and Michigan, we will take the same approach in those states as well. We do so fully aware that the number of votes separating Donald Trump and Hillary Clinton in the closest of these states — Michigan — well exceeds the largest margin ever overcome in a recount. But regardless of the potential to change the outcome in any of the states, we feel it is important, on principle, to ensure our campaign is legally represented in any court proceedings and represented on the ground in order to monitor the recount process itself.
Which, okay, fair enough, but it still looks a bit silly overall, and a waste of money since they don't seem to think any recount effort will have any impact anyway.
Act Three: Donald Trump: meeeeeeeeee! this must be about meeeeeeeeee!
At this point, any reasonable President-elect in the same scenario would sit back, chuckle at the absurdity of the efforts discussed above and maybe focus on finishing up his planned cabinet appointments. But not Donald Trump. First, he mocked the Clinton campaign for joining in this effort. To some extent, you can understand this bit of gloating, after the lengths Clinton and her supporters went to in mocking Trump's own claims that he might contest the results of the election:
Of course, this still looks kind of petty, especially given that Trump himself had made it quite clear that he would have actively contested the results had he lost. It's a bit silly to then mock the Democrats for doing what he would have done, even if they played this silly game of pretending to get involved reluctantly.
But, in true Trump fashion, he just can't leave things like this alone. The potential recount seemed to be getting too much attention, so he decided to roll out his bullshit "voter fraud against me" claims anyway, first arguing that he would have won the popular vote, if it weren't for 3 million illegal votes for Clinton.
This seems partly in response to the fact that reporters are covering the fact that Clinton's lead in the popular vote keeps growing, and surpassed 2 million votes. Of course, who won the popular vote is effectively meaningless, but it seems to make Trump antsy. The whole "millions of people who voted illegally" thing is conspiracy theory bullshit, pushed by a former Texas official based on absolutely nothing -- but picked up by the crackpots at Infowars.
Let's be clear here: the claim is absolutely hogwash, yet is being repeated by our President-elect, who already won but seems insecure with the fact that he lost the popular vote. I thought that in this effort, both Jill Stein and Hillary Clinton would come out of this process looking like sketchy sore losers. What I didn't expect (though probably should have) is that Trump would come out of it looking even worse. Not only is he a sore winner, but he's reinforced the fact that he's willing to buy into complete crackpot conspiracy theories if they support his ego. That's insane, and incredibly dangerous.
He followed that up with yet another tweet, claiming that the media is ignoring "serious voter fraud" in Virginia, New Hampshire and California:
This is also ridiculous. If there were any actual evidence of voter fraud, the press would be all over it -- even those that people want to insist supported Clinton. Even if the mainstream media were hopelessly in the tank for Clinton, getting a big story like evidence of widespread "serious voter fraud" would overwhelm that. But the fact is that there's no such evidence. Our President-elect is either making stuff up entirely, or repeating crackpot theories. Also, by falsely claiming that there's widespread voter fraud, Trump seems to be undermining his own message that there shouldn't be recounts going on. If he's really so concerned about widespread voter fraud (again, which didn't actually happen), why isn't he embracing the calls for recounts too?
If you want some actual facts: there's been almost no evidence of voter fraud, other than a few small attempts here or there. ProPublica has the best analysis of this, noting the many ways in which it has reviewed the data, looking for evidence of voter fraud and finding none at all. Here's a sampling of what ProPublica had to say:
We had 1,100 people monitoring the vote on Election Day. We saw no evidence the election was “rigged” no matter what Stein or Trump say. /1
So, yeah. Everyone comes out of this looking absolutely terrible. Voting machines are terrible and prone to serious security problems, and should be done away with -- especially in their current form. But even with the security concerns, the idea that there was serious voter fraud due to those machines, or from other factors, is complete hogwash, and everyone should just stop it.
Well, I guess it's time to complete the circle. Last week, we were warning that the rush to demonize Facebook for allowing "fake news" to be distributed and shared via its platform would lead to calls to suppress and censor certain view points. And then, this week came the news that China is strategically and opportunistically using the hubbub over "fake news" to push for greater censorship of the internet -- claiming it's necessary to stop fake news and keep people "better" informed (rather than the opposite).
And to top all of that off, comes a story from the NY Times about how Facebook has been working on a tool to allow the Chinese government to censor stories on Facebook as a condition of entering the market. It's no secret that Facebook has been trying for a really long time to figure out a way to get into China. There are over a billion potential users there that Facebook really wants on its platform. And that's not a bad thing. But, of course, China has a heavily censored internet. And while Facebook has been mostly blocked in China, there have already been reports from last year of stories being suppressed to appease the Chinese government.
And now comes "the tool."
The social network has quietly developed software to suppress posts from appearing in people’s news feeds in specific geographic areas, according to three current and former Facebook employees, who asked for anonymity because the tool is confidential. The feature was created to help Facebook get into China, a market where the social network has been blocked, these people said. Mr. Zuckerberg has supported and defended the effort, the people added.
Facebook has restricted content in other countries before, such as Pakistan, Russia and Turkey, in keeping with the typical practice of American internet companies that generally comply with government requests to block certain content after it is posted. Facebook blocked roughly 55,000 pieces of content in about 20 countries between July 2015 and December 2015, for example. But the new feature takes that a step further by preventing content from appearing in feeds in China in the first place.
Facebook does not intend to suppress the posts itself. Instead, it would offer the software to enable a third party — in this case, most likely a partner Chinese company — to monitor popular stories and topics that bubble up as users share them across the social network, the people said. Facebook’s partner would then have full control to decide whether those posts should show up in users’ feeds.
To be clear, the story notes that while this software has been developed, it's not yet in use, and may never be in use. It's there as a sort of "break glass, in case it's needed" offering. And, not surprisingly, it's also quite controversial within the company:
Over the summer, several Facebook employees who were working on the suppression tool left the company, the current and former employees said. Internally, so many employees asked about the project and its ambitions on an internal forum that, in July, it became a topic at one of Facebook’s weekly Friday afternoon question-and-answer sessions.
Mr. Zuckerberg was at the event and answered a question from the audience about the tool. He told the gathering that Facebook’s China plans were nascent. But he also struck a pragmatic tone about the future, according to employees who attended the session.
“It’s better for Facebook to be a part of enabling conversation, even if it’s not yet the full conversation,” Mr. Zuckerberg said, according to employees.
In many ways, this is similar to the struggle that Google faced with China as well, concerning whether or not to locate operations there, and how to deal with demands for both censorship and surveillance from the Chinese government. And, in both cases, there is a reasonable argument for providing some tools to connect the Chinese to the rest of the world. But there's also a quite reasonable fear of what a slippery slope this is and where it's likely to end up.
But the timing of this story coming out seems particularly ridiculous. Just as Facebook has quite reasonably pushed back on the calls from people in the US to censor the newsfeed over "fake news," for it to come out that it has a working tool to censor "real news" seems... kind of ridiculous. And, I've seen some people now pointing to this NY Times article as evidence that Facebook could block fake news if it wanted to. But that's silly and misguided. It's also implicitly arguing that Chinese-style censorship is the proper approach for the US. That's not a good idea.
In my browser. I go to Google News, I tap a story, and it opens on the same page. Maybe it's only the top stories; I don't remember.
It sounds like you're talking about publishers that use AMP, which is Google's (open source) standard for fast loading stories. But publishers have to choose to use AMP. https://www.ampproject.org/ So, if you're clicking on AMP'd stories it may seem like they're still in the same window, but the publishers are still making that choice and setting up to use AMP. Otherwise, you're still going all the way to the publisher's original site.
I think you're confusing op-eds with news reporting. It's not uncommon for op-eds to have "point/counterpoint" style pieces. It sounds like that's what you saw. But an opinion piece is very different than "fake news."
That doesn't indicate changing someone's mind. That suggests just that someone likely predisposed to believing crazy false conspiracy theories about the Clintons believed one. My point is that it's not making Trump supporters like Clinton or vice versa.
So the list the WaPo published presumably only included right leaning sites and it could be argued that the WaPo is not absent malice in opposing such sites whose views differ mightily from it's editorial board. The WaPo should have known the story was bogus as other newspapers did but it furthered their narrative so they went with it. Could it be considered defamation? Doesn't appear to be as open or shut a case as you intimate Mike.
First of all, the WaPo didn't publish any list. It wrote an article about an organization. That organization published a list. WaPo did not.
Second, the list did not just include right leaning sites. It did include many, but also some left leaning sites. For example, Antiwar, Truthout & TruthDig are all considered left leaning.
Sorry, but the left are the ones labeling and name calling and losing because of it. There is a complete refusal from the left to talk policy.
The only one labeling others that I see here is you. Also, have you realized yet that this story has nothing to do with Trump at all? Why make it about that?
I've been saying for a while that any comment that talks about "the right" or "the left" is almost 100% devoid of actual content. You're name calling for no reason other than tribalism. You want to talk policy? Stop with the team sports bullshit and talk actual policy. Starting with this post: let's talk about the problems of surveillance. We started with the post. You then shat in the comments about blue team/red team, rather than actually adding to the discussion about policy.
The idea that Techdirt was ever "pro-Hillary" is the most laughable thing I've seen. Can anyone point to anything positive we ever said about Clinton? Some people just keep insisting that anyone who criticizes Trump must be pro-Hillary. And all that does is reveal that they root for a team, and don't care about actual policies. This is true of many supporters of either candidate. It becomes rooting for a team or even a religion, rather than anything rational.
We haven't changed our position: we focus on policies and statements made by people, rather than what team they're on. It's why we rarely even mention party names, and why over the years we've criticized people from both major parties pretty much equally.
I know it's tough for Trump supporters to recognize this, but believing he's going to be a disaster doesn't mean we didn't also think Clinto would be a disaster (for what it's worth, I thought basically every candidate would have been a disaster and I wish we had a better system for finding a President).
No. Just sick of idiots who view everything on a left/right spectrum that isn't even remotely accurate. You keep attacking 'the left' as anything that disagrees with you.
Also, I notice that rather than respond to the multiple factual errors you made, you just attack me based on more falsehoods. This is not symptomatic of "the left" or "the right" but of foolish blowhards who identify more with a team than with reality. Stop identifying with a team and start learning.
The fact that you don't see the correlation between the leftist media blaming "fake" news for causing Hillary's loss as the first step to controlling the news and therefore the message is sad.
Um. You realize that I was one of the first to call out this exact risk, saying that the blaming of fake news is stupid, and a slippery slope to censorship:
EFF Deeplinks blog still doesn't have ANY comment section. But of course you won't write about THAT.
Um. You want us to write about every random website that doesn't decide to turn on comments? Why?
Should EFF's blog have comments? Sure. Maybe.
But that wasn't the issue here that were talking about. This was about media companies who HAD comments and basically ignored them until shutting them down claiming they were doing it because they were so interested in listening to their community.
Do you not do nuance? Or were you just trying (and failing) to be snarky?
Just look at FB, Google and Twitter. All founded by leftists who now wish to censor "fake" news.
Just so you know, basically everything in that sentence is flat out false. They were not founded by "leftists" (you might be able to make the case that one Twitter founder would be considered a "leftist" but even that's a stretch -- none of them are easily defined on the silly "left/right" political spectrum. Second, none of them wish to censor fake news. In fact, all three companies have actively resisted demands that it do so.
So, yeah. Get out of your bubble. You've been fed a line of bullshit.
Mike, do you have a preference for which vehicle receives support. I assume support directly through the Insider Shop would do the most good.
We want people to feel comfortable supporting us however they want -- that's the most important thing. Lots of folks seem to really like Patreon and we were interested in using the platform. So for people who want to support us that way, it's great. In terms of direct monetary contribution, sure, supporting us directly via the Insider Shop means more of the money goes directly to us (we still have some transaction costs) and it's more integrated into the site. But, really, it's up to everyone what they're most comfortable doing.
Are existing monthly donations handled by Beacon in any way?
If you're just supporting us directly via the Insider Shop, then no. Those are handled directly by us, and you don't need to change anything. For people who were paying us monthly via Beacon, they should have received notice a while back that those charges were no longer happening.
This is just another, different way for people to support what we do (and, in particular, to support the podcast).
I should have added, they went after Trump while ignoring the controversy around Hillary.
This is not even remotely true. The controversy around Clinton's email servers got a ridiculous amount of coverage. It was interesting to us here, because that was an issue that we had strong opinions on, but it far outweighed the seriousness of ths issue, and paled in comparison to coverage of Trump's equally problematic issues.
They ignored Wikileaks almost completely. Just like you are doing here.
Wha....? We covered Wikileaks and the press was ALL OVER Wikileaks leaks. The problem was that most of them were a giant nothingburger. Oh, the campaign had lunch with the press. That's what reporters do. They cultivate sources. The biggest revelation in the leaks was the Donna Brazile sending questions over (something we did cover).
The left are the ones living in their safe space bubble. After all, you don't see conservatives needing playdoh and puppy therapy on college campuses
Huh? What does that have to do with anything that we're discussing.
But when you call BS on Trump while completely ignoring the same BS or worse on Hillary and the DNC, then I have a problem.
That's the fucking problem here. I called out Clinton just as much as Trump during the campaign. And now she lost. There's nothing to cover on her any more. So I'm covering Trump and his idiotic statements just as I would now be covering Clinton and her idiotic statements.
Why don't you understand that?
But yes, I will immediately unsubscribe to this blog. Your angry, bitter posts have ruined this place and that is a real shame because you had a good thing going here.