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The Ugly Political Sock Puppetry of Arizona’s Top Educator

Screen Shot 2014-06-17 at 6.18.50 PMDespite the obvious heat surplus and water shortage issues, Arizona continues to be one of the most growth intensive states, and has pegged much of its future on what can be loosely called “smart sectors” such as information technology, solar, chip making and, indeed, higher education itself as evidenced by the recent Starbucks/Arizona State University partnership.

You would think, given the above factors, and many more, Arizonans would be meticulous and scrupulous about the leaders they elect to shepherd the state’s educational system. But you would be wrong.

The power and control of Arizona’s education system rests in the hands of an elected State Superintendent of Public Instruction. Sadly, it has been a position occupied by common, and morally bankrupt, conservative political hacks of late. From 2003 through 2011, the office, the fifth highest elected office in Arizona, was held by Tom Horne, the current embattled Attorney General of Arizona. Horne was a line construction lawyer who up and got elected Superintendent of Public Instruction. But, hey, how much worse is that than when a podunk lawn mower repairman got elected Maricopa County Sheriff (which was before the office went totally into the sewer with former travel agent Joe Arpaio).

Okay, Horne was awful as Superintendent of Public Instruction (and has disgraced the office of AG even worse since), but once he left, one John Huppenthal was elected to cover the educational interests of Arizona’s children. And since January 2011, Huppenthal has been the one in charge of Arizona’s education.

Who is John Huppenthal? Pretty much an up through the ranks of the bat shit crazy Arizona state legislature right wing political climber. People who lived in Huppenthal’s district in the late 90′s, when he was an Arizona State Senator, can attest that the man compulsively and inexplicably robo-called with all kinds of dogmatic messages, at all hours of the day and night. To the point to where some literally were forced to contact his office and threaten suit if it did not stop on their phone. Huppenthal and his office were stunningly cavalier and arrogant about Huppenthal’s compulsive robo-calling. Yet he took to it again as Superintendent of Public Instruction in an effort to undermine the public schools he was entrusted with protecting and, instead, cravenly support private vouchers taking money away from public schools.

Such is great flavor as to the “measure of the man” that is John Huppenthal, but still mostly ancient history. How has the aggressively dogmatic Huppenthal done as Superintendent of Public Instruction, i.e. Arizona’s top educator? Same old story; same old song and dogmatic nutjob dance. You may remember the controversy over “banned textbooks” by the Tucson Unified School District a little over two years ago from the somewhat hyperbolic and inaccurate “Jeff Biggers Salon expose“. Well, that whole ordeal, contrary to Biggers’ Salon framing, Continue reading

The Carnage In Isla Vista, Hashtag Justice and Echidne

Screen Shot 2014-05-26 at 11.41.50 AMI have not been there in a while, but I have been there quite a bit before, and the Isla Vista/Goleta area surrounding UCSB is everything good and bad that surrounds any major university. It is a melting pot teeming with brilliant young minds, eager to expand and ready to experiment and socialize. It is also cliquish and too easy to separate the in from the out crowd and, sometimes, rich from poor. Above all else, at least from my visits there when I was younger, IV was one wild party that could be anywhere along a couple of key streets, if not indeed out in the streets themselves. It was one hell of a good time.

But not this Memorial Day weekend. Something different and jolting happened, leaving seven souls dead, seven more injured and yet another community, and national audience, grieving and reaching for answers.

I don’t know what the answers are, and to a great extent, I do not think the pathology of this incident is yet ripe enough to draw them with any real definition. That has not, of course, stopped the light speed social justice court of Twitter and the internet.

The reaction on Twitter has run the spectrum from sober to hysterical. If you are on Twitter, you have seen it, if you are not, it is not hard to imagine if you are internet savvy enough to be reading the instant post. Speaking only for myself, however, I have been a little disturbed by the alacrity with which valuable social justice movements, and their participants, have glommed on to a tragic spree crime as the defining vehicle for their arguments, whether it be women’s rights, gun control or otherwise.

It strikes me, while certainly all of these things figure into the Rodger situation to some extent, hitching up to a spree murder by a mentally disturbed individual is not exactly a great vehicle for your social justice movement. It is more complex than that, and it is too easy in haste to mistake manifestations for root causes. Post hoc, ergo propter hoc if you will.

And, while I know the intent was good, I have found the “hashtag advocacy” via such tags as #YesAllWomen, and the reflexively responsive #NotAllMen, to not necessarily do all that much to further the well meaning intention of their adopters. While some of those tweets have seemed germane and helpful, a great many seem Continue reading

Glass Shattered: California Supreme Court Denies Stephen Glass Law License

The decision is in, and the California Supreme Court has made their decision to refuse to grant Stephen Glass a law license in the State of California.

We conclude that on this record he has not sustained his heavy burden of demonstrating rehabilitation and fitness for the practice of law.

The full opinion is here.

Ironically, the California Bar’s initial hearing officer, the entity that actually deals with line level lawyers and their practice on a day to day basis in California, found Glass had demonstrated reform and good character so as to be fit for practice. The The State Bar Court Review Department independently reviewed the record and agreed with the initial finding of character fitness for practice. Instead, it was the more insulated elitists in the Bar Committee, and ultimately in the California Supreme Court, who thought otherwise.

Glass’s conduct as a journalist exhibited moral turpitude sustained over an extended period. As the Review Department dissent emphasized, he engaged in “fraud of staggering‟ proportions” and he “use[d] . . . his exceptional writing skills to publicly and falsely malign people and organizations for actions they did not do and faults they did not have.” As the dissent further commented, for two years he “engaged in a multi-layered, complex, and harmful course of public dishonesty.” Glass’s journalistic dishonesty was not a single lapse of judgment, which we have sometimes excused, but involved significant deceit sustained unremittingly for a period of years. (See Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 742 [applications may be rejected in cases of “numerous fraudulent acts” and “false statements”].) Glass’s deceit also was motivated by professional ambition, betrayed a vicious, mean spirit and a complete lack of compassion for others, along with arrogance and prejudice against various ethnic groups. In all these respects, his misconduct bore directly on his character in matters that are critical to the practice of law.

and

Glass’s misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him.

Moreover, Glass’s lack of integrity and forthrightness continued beyond the time he was engaged in journalism. Once he was exposed, Glass‟s response was to protect himself, not to freely and fully admit and catalogue all of his fabrications. He never fully cooperated with his employers to clarify the record, failed to carefully review the editorials they published to describe the fabrications to their readership, made misrepresentations to The New Republic regarding some of his work during the period he purported to be cooperating with that magazine, and indeed some of his fabrications did not come to light until the California State Bar proceedings. He refused to speak to his editor at George magazine when the latter called to ask for help in identifying fabrications in the articles Glass wrote for that magazine.

The decision goes on to hammer Glass about as hard as could be imagined in every aspect of his prior conduct, rehabilitation and application for bar membership. The decision is every bit as venomous and scathing as the oral argument was (further discussed below).

Back in August of last year, I wrote about the attempt of failed, story inventing journalist Stephen Glass’ attempt to gain his license to practice law in the State of California. I drew a comparison between the beyond commendable success Shon Hopwood has found in gaining an exclusive Continue reading

Say Hello To Our New Friends At Just Security

Screen shot 2013-09-23 at 11.46.58 AMWe do a lot of things here at Emptywheel including occasionally, goofing off. But our primary focus has always been the intersection of security issues, law and politics. I think I can speak for Marcy and Jim, and I certainly do for myself, we would love it if that intersection were not so critical in today’s world. But, alas, it is absolutely critical and, for all the voices out there in the community, there are precious few that deep dive into the critical minutiae.

Today we welcome a new and important player in the field, the Just Security Blog. It has a truly all star and broad lineup of contributors (most all of whom are listed as “editors” of one fashion or another), including good friends such as Steve Vladeck, Daphne Eviatar, Hina Shamsi, Julian Sanchez, Sarah Knuckey and many other quality voices. It is an ambitious project, but one that, if the content already posted on their first day is any indication, will be quite well done. The home of Just Security is the New York University School of Law, so they will have ample resources and foundation from which to operate for the long run.

Ironically, it was little more than three years ago (September 1, 2010 actually) that the Lawfare Blog went live to much anticipation (well, at least from me). Whether you always agree with Ben Wittes, Bobby Chesney, Jack Goldsmith and their contributors or not, and I don’t always, they have done this field of interest a true service with their work product, and are a fantastic and constantly evolving resource. There is little question but that Just Security intends to occupy much of the same space, albeit it in a complimentary as opposed to confrontational manner. In fact, it was Ben Wittes who hosted the podcast with Steve Vladeck and Ryan Goodman that serves as the multi-media christening of Just Security.

Orin Kerr (who is also a must read at Volokh conspiracy), somewhat tongue in cheek, tweeted that the cage match war was on between Lawfare and Just Security. That was pretty funny actually, but Orin made a more serious point in his welcome post today, and a point that I think will greatly interest the readers of Emptywheel:

Whereas Lawfare tend to have a center or center-right ideological orientation, for the most part, Just Security‘s editorial board suggests that it will have a progressive/liberal/civil libertarian voice.

From my understanding, and my knowledge of the people involved, I believe that to be very much the case. And that is a very good thing for us here, and the greater discussion on so much of our work.

So, say hello to our new friends at Just Security, bookmark them and give them a read. Follow them on Twitter. You will be better informed for having done so.

Fund Unchained Journalism of Emptywheel: It’s All Because Of You

[Note from Jim: There have some issues with the PayPal buttons taking you to PayPal's main page instead of the page set up for Emptywheel donations. Please use the link below and it will give a functioning button. On my machine and browser, though, you have to click the button and stay in the same browser tab for it to work. If you do "cntrl-click" to open in a new tab, you get the main PayPal home page. If there are any issues, please let us know. If you prefer snail mail, checks made out to "Emptywheel, LLC" can be mailed to this address:Emptywheel, LLC
P.O. Box 1673
Grand Rapids, Michigan 49501-1673Thank you one and all, you are the best readers an supports on the web!]

Okay, the Emptywheel blog has run a fundraiser for a week now. For the most insightful, deep weed analyzing, cutting edge and kick ass journalism on the web.We continue to need your support.

We started this ask a week ago, and I should know because I agreed for it to start just ahead of my Trash Talk post at the open of the NFL football season a week ago last night.

But I am going to extend the ask for a short time; such as through the weekend, because it is a more than worthy effort. And it will stay on top of this blog until some time Monday with the hope that the Emptywheel model is kickstarted, so to speak, further into success. Please, help us make it so by going to this page and donating.

If there is a more neutral, deep fact based, deeply analytic, independent and proven insightful blog, or voice than Ms. Marcy T. Wheeler, better serving the relevant niche, than this one, I would like to see it. Whether you are on the right or the left, this blog is incredibly valuable for its depth and consistency of analysis.

The lioness share of this history is by Marcy Wheeler and she alone deserves the support; but you also get the cogent analysis of Jim White, Rayne and, every now and then, me. I won’t speak for my own, but the rest is damn good work. And worthy of your support as a critical voice, whether you agree or disagree with us politically, legally, and/or policy wise.

We need your support as independent journalistic voices in the mass media milieu. Make no mistake, your support of all of our work here helps establish all of us as protected and respected journalists, and we are thankful for the same.

If you are reading this, you either know, or should know, precisely what level of outstanding journalism goes down daily on, and at, the Emptywheel blog.

As they say in my business, there is a certified record. And it stands up. Help us keep up that record, and add to it, with all that is going on in the world every day.

It is not about us. It is about you, and all of us, and what we should and can be. Support this journalism. From me, to Marcy, to Jim, to Rayne, to everything that is, and always has been, the Emptywheel blog, thank you.

Some people get squashed crossing the tracks
Some people got high rises on their backs
I’m not broke but you can see the cracks
You can make me perfect again
All because of you

We can help check the government in its tracks, help fill the gaping cracks. The Emptywheel blog is indeed all because of you. True independent journalism, not bought off by anybody in the main; not subject to any corporate ball and chain. Real independent deep analysis, reportage and journalism.

Help us continue the tradition.

You can donate here.
Thank you!

NBC News Hires Edison Carter and Blank Reg For Big Time TV

NBC News, showing it can move 20 minutes into the future, has made a new and exciting digital acquisition. From Brian Stelter (who was a great replacement for Howard Kurtz today on CNN’s “Reliable Sources”. Seriously) at the New York Times:

When a plane crashes or a protest turns violent, television crews speed to the scene. But they typically do not arrive for minutes or even hours, so these days photos and videos by amateurs — what the news industry calls “user-generated content” — fill the void.

Those images, usually found by frantic producers on Twitter and Facebook, represented “the first generation of user-generated content for news,” said Vivian Schiller, the chief digital officer for NBC News. The network is betting that the next generation involves live video, streamed straight to its control rooms in New York from the cellphones of witnesses.

On Monday, NBC News, a unit of Comcast’s NBCUniversal, will announce its acquisition of Stringwire, an early stage Web service that enables just that. Ms. Schiller imagined using Stringwire for coverage of all-consuming protests like those that occurred in Tahrir Square in Cairo.

“You could get 30 people all feeding video, holding up their smartphones, and then we could look at that,” she said in an interview by phone. “We’ll be able to publish and broadcast some of them.”

Such a vision fits neatly into the future many academics predict. That future has fewer professional news-gatherers but many more unpaid eyes and ears contributing to news coverage.

Before we delve too far into the analogies with the once dystopian future we are now quickly inhabiting, it should be acknowledged that, while new and exciting, this is really just a big incremental step ahead of what CNN has been doing for a while with its “iReport” function.

But the Stringwire capability would look to provide even greater immediacy than CNN’s iReport and, perhaps, even streaming coverage. There is, of course, a very negative side to this potential should unfortunately slanted or particularly grotesque coverage be presented. Also a very real concern is the potential for interference in law enforcement investigations and trauma to people effected and/or prejudiced, including witnesses, defendants and future jury pools, by publication before news is ripe and edited.

The above being said, for my part, I find Groman’s Stringwire concept to be pretty exciting and think it a pretty smart move by Vivian Schiller and NBC News. But, boy howdy, does it bring to mind the once and, apparently future, dystopian information landscape of Max Headroom. From Wiki:

The series is set in a futuristic dystopia ruled by an oligarchy of television networks. Even the government functions primarily as a puppet state of the network executives, serving mainly to pass laws — such as banning off switches on televisions — that protect and consolidate the networks’ power. Television technology has advanced to the point that viewers’ physical movements and thoughts can be monitored through their television sets; however, almost all non-television technology has been discontinued or destroyed. The only real check on the power of the networks is Edison Carter, a crusading investigative journalist who regularly exposes the unethical practices of his own employer, and the team of allies both inside and outside the system who assist him in getting his reports to air and protecting him from the forces that wish to silence or kill him.

To elaborate a little, Edison Carter of “Network 23″ is one of several journalists, including another character by the name of “Blank Reg” of “Big Time TV”, who scour the landscape as one man newscrews, just them and their own videocam, for breaking news that will live feed instantaneously to their national networks to drive ratings. So, you can see the analogy to NBC’s Stringwire concept.

One difference between Max Headroom and the current television news existence is that, in Max Headroom, the television broadcasters wholly consumed and dictated to a puppet state government. The current existence of television news seems more tilted to the profit centered, shallow mass consumption oriented, stenography of government issued and manipulated propaganda. One need only look back at the coverage of the Iraq war, Afghanistan, Guantanamo, torture, the rise of the surveillance state or any report from Barbara Starr at CNN (thank you Michael Hastings) to see the problem.

So, while there is certainly potential for some concerns, maybe a function like Phil Groman’s Stringwire at NBC News can not just bring an immediacy to television news, but eradicate some of the governmentally issued bullshit that results from “Breaking News” from the likes of Barbara Starr.

All hail the future. Big Time Television, “All day every day, making tomorrow seem like yesterday.”

Negative Manning Decision and the Future of Investigative Journalism

imagesLittle more than few hours ago, a critical ruling was handed down by Judge Denise Lind in the Bradley Manning UCMJ prosecution ongoing at Fort Meade. The decision was on based on this motion by the defense seeking dismissal of the “Aiding the Enemy” charge, among others in the prosecution.

To make a long, even if sadly predictable, story short, the motion was denied by Judge Lind and the charge will proceed to determination on the merits. This is, to be sure, a nod to the prosecution (which is actually the standard in such motions for directed verdicts during trials; that is the facts are taken in the light most favorable to the non-moving party, the government). It is also, obviously, a blow to the defense, although undoubtedly an expected one for defense attorney David Coombs. There is a very outside chance of a silver lining I will discuss below.

Julie Tate at the Washington Post sets the table:

The motion to dismiss the charge was filed July 4 by Manning’s civilian defense attorney. He argued that the government had failed to show that Manning “had ‘actual knowledge’ that by giving information to WikiLeaks, he was giving information to an enemy of the United States.” He said the government did introduce evidence “which might establish that PFC Manning ‘inadvertently, accidentally, or negligently’ gave intelligence to the enemy,” but that this was not enough to prove the most serious charge against him, known as an Article 104 offense.

On two separate occasions, Lind, an Army colonel, had questioned military prosecutors about whether they would be pursuing the charge if the information had been leaked directly to The Washington Post or the New York Times. Each time, the prosecution said it would. That troubles advocates for whistleblowers, who fear that the leaking of national defense information that appears online, as it inevitably does, can be construed as assisting the enemy.

If convicted of aiding the enemy, Manning, an intelligence analyst who served in Iraq, could face life in prison.

That describes the motion and the stakes as to Manning. Julie’s article also gives more particulars on the denial this morning, and is worth a read. For a tick tock, please see the continuously good coverage by Kevin Gosztola of Firedoglake.

But as enormous as the stakes are for Bradley Manning, the enterprise of investigative journalism is also on trial, even if in an indirect manner.

Yet another journalist who has tirelessly, and superbly, covered the Manning prosecution, Alexis O’Brien, has written at the Daily Beast, the stakes for investigative journalism are also life and/or death in the face of the security/surveillance state. Citing the in court, and on the trial record, compelling testimony of Professor Yochai Benkler of Harvard Law School, Alexis related:

In a historic elocution in court last week, Prof. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard Law School, told Lind that “the cost of finding Pfc. Manning guilty of aiding the enemy would impose” too great a burden on the “willingness of people of good conscience but not infinite courage to come forward,” and “would severely undermine the way in which leak-based investigative journalism has worked in the tradition of [the] free press in the United States.”

“[I]f handing materials over to an organization that can be read by anyone with an internet connection, means that you are handing [it] over to the enemy—that essentially means that any leak to a media organization that can be read by any enemy anywhere in the world, becomes automatically aiding the enemy,” said Benkler. “[T]hat can’t possibly be the claim,” he added.

Benkler testified that WikiLeaks was a new mode of digital journalism that fit into a distributed model of emergent newsgathering and dissemination in the Internet age, what he termed the “networked Fourth Estate.” When asked by the prosecution if “mass document leaking is somewhat inconsistent with journalism,” Benkler responded that analysis of large data sets like the Iraq War Logs provides insight not found in one or two documents containing a “smoking gun.” The Iraq War Logs, he said, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.”

Those really are the stakes in the, now, not all that new age of digital journalism. When the prosecutors in the Manning trial, upon direct questioning by Judge Lind as to whether they would still prosecute Manning if his leaks had been delivered straight to the New York Times or Washington Post, it had to be a wake up call for traditional media. Or so you would think. But, really, the outrage has been far greater over the James Rosen/Fox subpoena that could, and arguably should, be considered relative peanuts.

But, Yochai Benkler is right as to the import of the consideration as to Wikileaks in the Manning case.

In closing, the one slim and thin ray of limited hope from today’s ruling by Denise Lind: If I were Lind and cared at all about the ultimate verdict on Pvt. Bradley Manning, I too would have made this ruling. Why, you ask? Well, because a dismissal on the motion would have been the equivalent of a directed verdict on the law and would be far easier to overturn on appeal than a decision on the merits that the government has not met its burden of proof. Is this possible; sure, it certainly is. Is this likely; no, I would not make any substantial bets on it.

On “Bullshit by Omission”

Screen shot 2013-07-15 at 4.54.30 PMApparently, Walter Katz — who tweets as “lawscribe / Wieland” — believes he succeeded in “calling me out” on “bullshit by omission” with this post on Saturday.

After he pointed me to it in apparent good faith on Saturday, I pointed out his own omissions, as well as two errors.

The errors were two-fold. First, he originally identified me as a lawyer, which I noted here I am not. He just updated his post to correct that and one other error (though seems not to have noted that I corrected him, as bmaz has in the past).

More problematic for his argument, he believes he caught me in an error in this passage:

But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.

That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.”

The “I’m not sure they once utter” comment clearly referred, in context, to DOJ in the News Media Policies. And, in point of fact, I’ve since done a search of the document, and DOJ does not once use the term “journalist” or “reporter” in it. It was a correct statement.

But Katz cites the FBI’s Domestic Investigations and Operations Guide — not the News Media Policies — and notes that it mentions “journalist.”

A freelance journalist may be considered to work for a news organization if the journalist has a contract with the news entity or has a history of publishing content.

Not only does the DOJ refer to “journalists” as Emptywheel said she was not “sure” if it ever did, it specifically provides for independent journalists who are either under contract with a publication or have published before.

Of course DOJ, in its history, has uttered the word “journalist” before, plenty of times. They have an entire department that deals with journalists! But I made no claim that DOJ, generally, had never used the word “journalist,” which would be an absurd claim. In spite of the fact that I noted this clear error in his piece, Katz did not correct his own piece when he took out his erroneous reference to me as a lawyer.

As to Katz’ omissions, he makes two, one substantive, and one of equal weight to one he complains I’ve made. First, he quotes my entire 2011 discussion on what the DIOG says about news media I included in my post except for this last bit:

The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.

Now, it’s especially odd that he doesn’t quote that passage, because immediately after that blockquote, he paraphrases (arguably mis-paraphrases, since my argument is that I engage in journalism that should clearly be protected) the last part of the passage.

Emptywheel argues that she, as a blogger, is not included in the definition of “news media” even though she may be disseminating information to the public as defined in the Privacy Protection Act of 1980.

Not only would it have been useful for Katz to convey to his readers that I made that assertion in 2011 (when I had no regular affiliation with a news media organization and therefore it was a much clearer case). But by leaving out my note that “The definition does warn that if there is any doubt, the person should be treated as media,” he leaves out a key caveat I made. I noted that omission here.

Then he complains that I didn’t (in 2011, when I had no regular ties to news media) continue my citation from DIOG one sentence further. He introduced the “freelance journalist” passage, above, with this language:

Emptywheel neglected to include what it states in the DIOG definition of “news media” on page 157 directly after it notes that a national reporter with a personal blog is covered by the guidelines:

But curiously, Katz chose to stop his own citation there, leaving out the sentence that immediately followed:

Publishing a newsletter or operating a website does not by itself qualify an individual as a member of the news media.

The passage certainly reinforces my point (as do a few other lines in the definition), and was part of what might have disqualified me — in 2011, when I made the statement about not qualifying — as a member of the news media. I noted that Katz omission here.

Of course, these mutual “gotchas” would be mooted had Katz simply not clipped my own quote and instead (mis)paraphrased my 2011 comment so as to skip my caveat. Nevertheless it is that omission — the sentence that my caveat would have incorporated — that he thinks demonstrates my “bullshit by omission.”

Incidentally, Katz also chose to clip my sentence that said some of these changes were good. I guess that would have harmed his claim that I “do[] not see the new guidelines as much progress.”

Finally, Katz fails, according to his own terms, in one other way. He embraces the term “news media” because it allows DOJ to be consistent across its document.

Emptywheel continutes:

They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”

Since I consult with law enforcement agencies on writing policy, the fact the DOJ generally uses one term, “news media,” is of no moment and, in fact, is desirable for clarity purposes.

But, of course, a key part of these policies (indeed, the one Katz focuses on in his post) is in addressing the Privacy Protection Act. And as I noted in my post, the PPA uses an entirely different standard than “news media” — it applies to “individuals who have a purpose to disseminate information to the public.”

The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the “suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including the “receipt, possession, or communication of information relating to the national defense, classified information, or restricted data “under enumerated provisions. See 42 U.S.C. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media. [my emphasis]

So by using “news media,” DOJ has actually shifted from one definition to another in the course of two paragraphs in discussing the topic that Katz focuses on as the reason for the new guidelines. I noted that here.

Now, to be fair to Katz, when I linked to my 2011 analysis of DIOG, I didn’t obviously identify it (beyond the link) as 18 month old analysis, so he may have been confused about that (though he appears to have clicked through, at least using my link to DIOG). So perhaps when he was bragging about having called out my “bullshit by omission” he may not have understood the errors such claims introduced in his own writing. My apologies if that’s the case.

But none of that explains why Katz went into his post and made corrections, yet didn’t correct the clear error about my reference to “journalist.”

Why “Members of the News Media” Should Welcome a Shield for the Act of Journalism

As I noted in this piece, the new policies DOJ rolled out in the wake of the AP and James Rosen revelations applies explicitly to “members of the news media,” not journalists per se. The definition might permit the exclusion of bloggers and book writers, not to mention publishers like WikiLeaks.

I’ve been asked what I think a better solution is. My answer is to define — and then protect — the act of journalism, not the news media per se.

That approach would have several advantages over protecting “the news media.” First, by protecting the act of journalism, you include those independent reporters who are unquestioningly engaging in journalism (overcoming the blogger question I laid out, but also those working independently on book projects, and potentially — though this would be a contentious though much needed debate — publishers like WikiLeaks), but also exclude those news personalities who are engaging in entertainment, corporate propaganda, or government disinformation.

But protecting the act of journalism rather than “news media” would also serve to exclude another group that should have limited protection. Included within DOJ’s definition of those it is protecting here are not just the reporters who work for the news media, but also the managers.

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

While I absolutely agree that, say, AP’s editors should have had their phone records protected as they contemplated withholding the UndieBomb 2.0 story after the White House request (those records were included in the subpoena) — that is, as they engaged in a journalistic role. That would protect any discussions they had with sources or other experts to challenge the government’s claim about damage, for example. But the communications of a Tim Russert being pressured after the fact about a critical story by the Vice President’s Chief of Staff should not be protected. Nor should WaPo CEO Katharine Weymouth’s discussions with huge donors like Pete Peterson or potential salon sponsors. While I suspect DOJ sees real benefit in protecting these cocktail weenie means of pressure on news media (as do, undoubtedly, some of the executives involved), I see no journalistic reason to do so.

Moreover, in an era where WaPo is really a testing firm with a journalistic rump and NBC is really the TV content wing of a cable supplier, should we really be protecting the “news media” with no limits? (Bloomberg, I think, presents the most fascinating question here, particularly given their recent spying on users of Bloomberg terminals; where does the journalistic protection for companies that primarily provide privatized information begin and end?)

But even within the scope of Friday’s guidelines, there’s a reason the members of the news media should favor protecting the act of journalism rather than membership in news media.

That’s because two of the most important passages in the new News Media Policies refer to newsgathering activities as a further modification to its otherwise consistent discussion of members of the news media. The phrase appears in what amounts to a mission statement describing why this issue is important.

As an initial matter, it bears emphasis that it has been and remains the Department’s policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure. The Department’s policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.

This is a weird passage, in that it both admits the “newsgathering process” is constitutionally protected, presumably for all, but then suggests the protections within this policy will only apply to members of the news media (one limitation) who cannot be prosecuted exclusively for their newsgathering activities (a second limitation).

Note the parallel limitation in a number of DOJ’s surveillance and investigative guidelines — which say people cannot be investigated solely for their First Amendment protected activities — has not provided adequate protection to Muslims engaging in speech and religion.

The policies again invoke “newsgathering activities” in the passage describing the news media protections in DOJ’s treatment of the Privacy Protection Act.

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.

By limiting protections offered to members of the news media to “ordinary newsgathering activities,” DOJ has just punted one of the crucial issues underlying the James Rosen affidavit (and, along with it, DOJ’s efforts to prosecute WikiLeaks). Because it still permits DOJ to decide, potentially in secret (though, as a laudable part of the new policy, with the input of the Public Affairs Director and the Privacy and Civil Liberties Officer), what constitutes “ordinary newsgathering activities.” And some of the things the FBI officer apparently decided  in that case did not constitute ordinary newsgathering activities, but instead provided evidence that Rosen was part of a conspiracy to commit espionage, include:

  • Soliciting disclosure of intelligence information, including documents, on North Korea
  • Using (in the FBI officer’s description) “covert email communications as a means of compartmentalizing the information” — this includes use of a pseudonym and a code for facilitating non-email communication
  • Exploiting a source “like a rag doll” and the source’s vanity (according to defendant Stephen Jin-Woo Kim’s descriptions); employing flattery (according to the FBI officer’s description)
  • Providing other news articles in advance of their publication to a source not used on that story

While there are other protections for news media in these new policies (including protections from non-NSL Administrative orders, review before using such investigative methods, reporting on how much investigation of news media occurs, and what amount to increased minimization procedures for news media contact information), this is one of the critical new protections in this policy.

If DOJ decides that protecting sources and methods, soliciting information, and sucking up to sources do not constitute “ordinary newsgathering activities,” then how useful are the protections?

DOJ has announced its intention to respect ordinary newsgathering activities and even recognized constitutional protections for them, sort of (I look forward to the legal cases that cite that language, anyway). But until there’s a common understanding about when such activities constitute journalism and when they constitute spying, the protection has limited value.

If the ultimate idea is to protect newsgathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?

In Bid to Placate Legacy Media, DOJ Moves Closer to Instituting Official Press

The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.

That’s because all the changes laid out in the new policy (some of which are good, some of which are obviously flawed) apply only to “members of the news media.” They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”

DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.

The limitation of all these changes to the “news media” is most obvious when it treats the Privacy Protection Act — which should have prevented DOJ from treating James Rosen as a  suspect. They say,

The Privacy Protection Act of 1980 (PPA), 42 U.S.C. § 2000aa, generally prohibits the search or seizure of work product and documentary materials held by individuals who have a purpose to disseminate information to the public. The PPA, however, contains a number of exceptions to its general prohibition, including the “suspect exception” which applies when there is “probable cause to believe that the person possessing such materials has committed or is committing a criminal offense to which the materials relate,” including the “receipt, possession, or communication of information relating to the national defense, classified information, or restricted data “under enumerated provisions. See 42 U.S.C. §§ 2000aa(a)(1) and (b)(1). Under current Department policy, a Deputy Assistant Attorney General may authorize an application for a search warrant that is covered by the PPA, and no higher level reviews or approvals are required.

First, the Department will modify its policy concerning search warrants covered by the PPA involving members of the news media to provide that work product materials and other documents may be sought under the “suspect exception” of the PPA only when the member of the news media is the focus of a criminal investigation for conduct not connected to ordinary newsgathering activities. Under the reviews policy, the Department would not seek search warrants under the PPA’s suspect exception if the sole purpose is the investigation of a person other than the member of the news media.

Second, the Department would revise current policy to elevate the current approval requirements and require the approval of the Attorney General for all search warrants and court orders issued pursuant to 18 U.S.C. § 2703(d) directed at members of the news media. [my emphasis]

The PPA, however, applies to all persons “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.”

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce;

I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.

Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.

Update: I’ve learned that the issue of whom this applied to did come up in background meetings at DOJ; in fact, DOJ raised the issue. The problem is, there is no credentialing system that could define who gets this protection and DOJ didn’t want to lay it out (and most of the people invited have never been anything but a member of the news media, making it hard for them to understand how to differentiate a journalist).

Ultimately, I think DOJ is so anxious for Congress to pass a shield law (which they say elsewhere in their report) because it’ll mean Congress will do the dirty work of defining who is and who is not a journalist.

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Emptywheel Twitterverse
bmaz People can talk+squawk ignorantly about the border, and control thereof, but they are politically motivated jackasses http://t.co/XVTrzpC9pB
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bmaz You want horror of Juarez, go see @dcbigjohn feed of last 24 hrs. If you think that is representative, get your head out of your ass. #NOT
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bmaz It was easy for @RubenGallego who I unconditionally supported, to be progressive, will he be so now? @downwithtyranny @ralonzo #TimeTells
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bmaz @Will_Bunch One of these teams may arguably have better pitching than the other.
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bmaz @nicholsong I may join, cause I currently have no dental plan #ThanksObama
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bmaz @nicholsong Also, al-Qaida and ISIS, right?
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bmaz @nicholsong And, heck, parenting is HARD. I mean that. But this shit is just too much.
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bmaz @nicholsong Meh, I have no issue with that. These are not great parents that thought this a good idea.
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bmaz @nicholsong Different times and places though. I would be dead if I had learned to drive where we live now.
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bmaz @nicholsong Hey, my daughter turns 19 tomorrow and has never sought her driver's license. I had my first accident at age 14.
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bmaz @nicholsong This was a freaking UZI pistol with lame stock, at best!
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