Google at Temple: Did DOJ Follow Its New Guidelines on Institutional Gags?

On October 19, 2017, DOJ issued new guidelines on default gag orders under the Stored Communications Act. It required that prosecutors “conduct an individualized and meaningful assessment requiring the need for protection from disclosure prior to seeking” a gag “and only seek an order when circumstances require.” Sometime after that, in association with its investigation of leaks about Carter Page, DOJ sought Ali Watkins’ call records, including her email subscriber records from when she was an undergraduate at Temple.

Under Justice Department regulations, investigators must clear additional hurdles before they can seek business records that could reveal a reporter’s confidential sources, such as phone and email records. In particular, the rules require the government to have “made all reasonable attempts to obtain the information from alternative, non-media sources” before investigators may target a reporter’s information.

In addition, the rules generally require the Justice Department to notify reporters first to allow them to negotiate over the scope of their demand for information and potentially challenge it in court. The rules permit the attorney general to make an exception to that practice if he “determines that, for compelling reasons, such negotiations would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.”

Top Justice Department officials must sign off on any attempt to gain access to a journalist’s communications records.

It is not clear whether investigators exhausted all of their avenues of information before confiscating Ms. Watkins’s information. She was not notified before they gained access to her information from the telecommunications companies. Among the records seized were those associated with her university email address from her undergraduate years.

This request would almost certainly not have been presented to Temple University. It would have been presented to Google, which provides email service for Temple. At least, that’s what appears to have happened in the case of Professor Xiaoxiang Xi in DOJ’s investigation of him for carrying out normal academic discussions about semiconductors with colleagues in China.

Thus far (as reflected here with the NYT coverage), the focus on whether DOJ followed its own regulations pertains to whether they followed guidelines on obtaining the records of a journalist. But the circumstances surrounding their request for Temple records should focus as much attention on whether the government followed its brand new regulations on imposing gags even when obtaining records from an institutional cloud customer like Temple.

The new guidelines were adopted largely in response to a challenge from Microsoft on default, indefinite gags. While few noted it at the time, what Microsoft most worried about was its inability to give its institutional customers notice their records had been subpoenaed. That meant that certain kind of cloud customers effectively gave up a legal right to challenge legal process by outsourcing that service to Microsoft. Microsoft dropped its suit to legally force this issue when DOJ adopted the new guidelines last year. Best as I understand, those guidelines should have governed whether Google could tell Temple that DOJ was seeking the records of a former student.

So it’s not just that DOJ didn’t give Watkins an opportunity to challenge this subpoena, but also whether they gagged Google from telling Temple, and providing Temple the opportunity to challenge the subpoena on academic freedom grounds.

Given how they treated Xi, it’s unlikely Temple would have done much to protect their former student. But some universities — and other institutions with special First Amendment concerns that use Microsoft or Google for their email service — might. They can only do so, however, if DOJ doesn’t obtain frivolous gags to prevent them from doing so.

The Mouse That Roared, The Bigotry Roseanne Perpetrated and Ignorant Racism Of Trump

Tonight, the ABC network, obviously owned and controlled by the Disney Mouse, has fired Roseanne Barr. It is a fine step. The better question is why they ever rebooted her ignorant racist act. The answer is, like the relentless quest of the New York Times to connect with “real America Trump Country voters”, they were more concerned about selling shit and getting eyeballs than they were about morality and truth.

Yeah, it is that simple.

ABC knew exactly what kind of ignorant racist bigot Roseanne Barr was, but they rolled the dice on the crap table of television because they cravenly thought there was a market for low brow bigotry in the age of Donald Trump.

For a bit, it seemed they were right. Heck, maybe they still are, maybe this country has fallen that far.

But when the pet star of ABC and Donald Trump, Roseanne, compared an accomplished woman like Valerie Jarrett to things I will not even cite here, even the Disney Mouse of ABC canceled her on the spot. How heroic.

It is fine to harsh on Roseanne. She has earned it for a long time. A long enough time that ABC and the oh so socially responsible “Disney Mouse” completely understood and, still, signed up to renew the platform for gross bigotry that Roseanne Barr represented in a heartbeat when they though they could catch the wave of Trumpian bigotry and racism.

It was like candy for the media monsters, much like the acceptance of the New York Times and other major media, although to a less obviously crass extent. Make no mistake though, it is all of the same cloth of go along to get along “let’s get maximum eyeballs” theory by major media that feeds the message fed to the United States and world. They know better, and they owe better. And, yes, I am talking to you Maggie Haberman. She is certainly not the only one, just a common and un-rehabiltated symbol at this point. But Mag Habs and the Times “political team” have come to this point the old fashioned way: They have earned it.

But, hey, the Times are not alone, CNN is similarly still sending out Salena Zito to interact with revanchist bigotry in “real America” like that bunk should be celebrated and normalized, not scorned and attempted to be informed.

This country should not celebrate ignorance, bigotry and stupidity. We should fight and overcome that.

ABC and the Disney Mouse may be unconscionably late to this game as to the attempt to ride the ignorance and bigotry of Roseanne Barr, but maybe there is a better day ahead.

Today, Howard Schultz and Starbucks took the step back to rethink and do better. ABC and the Mouse made a late, but needed step.

One step at a time. It is better than the original knee jerk reaction of the ABC network to piggyback on the bigotry of Roseanne Barr.

Belated Update: The title to this post was not meant just to be descriptive of the Disney action as to Roseanne, it was also an homage to the thoroughly wonderful classic movie “The Mouse That Roared”. If you have not seen it, you should. I think it is occasionally on TCM, but not sure. It is a wonderfully subtle early tour de force by the great Peter Sellers.

“Just Obstruction” Is the New “Red Line”

In the past, I have complained about how the NYT (including Mike Schmidt) themselves set a “red line” over which Robert Mueller shouldn’t cross, then gleefully focused on that in their reporting.

It further speculates this might cross a “red line” they put there themselves back in July, a red line commentators routinely report incorrectly as pertaining to any business interests of his.

Mr. Mueller could run afoul of a line the president has warned him not to cross. Though it is not clear how much of the subpoena is related to Mr. Trump’s business beyond ties to Russia, Mr. Trump said in an interview with The New York Times in July that the special counsel would be crossing a “red line” if he looked into his family’s finances beyond any relationship with Russia.

BREAKING: Robert Mueller would be fucking stupid if he weren’t subpoenaing this information.

[snip]

As I said, while the NYT got their own reporting right, most people quoting from it misquote what Trump actually said about any red line. Here’s the exchange.

SCHMIDT: Last thing, if Mueller was looking at your finances and your family finances, unrelated to Russia — is that a red line?

HABERMAN: Would that be a breach of what his actual charge is?

TRUMP: I would say yeah. I would say yes. By the way, I would say, I don’t — I don’t — I mean, it’s possible there’s a condo or something, so, you know, I sell a lot of condo units, and somebody from Russia buys a condo, who knows? I don’t make money from Russia. In fact, I put out a letter saying that I don’t make — from one of the most highly respected law firms, accounting firms. I don’t have buildings in Russia. They said I own buildings in Russia. I don’t. They said I made money from Russia. I don’t. It’s not my thing. I don’t, I don’t do that. Over the years, I’ve looked at maybe doing a deal in Russia, but I never did one. Other than I held the Miss Universe pageant there eight, nine years [crosstalk].

SCHMIDT: But if he was outside that lane, would that mean he’d have to go?

[crosstalk]

HABERMAN: Would you consider——

TRUMP: No, I think that’s a violation. Look, this is about Russia. So I think if he wants to go, my finances are extremely good, my company is an unbelievably successful company. And actually, when I do my filings, peoples say, “Man.” People have no idea how successful this is. It’s a great company. But I don’t even think about the company anymore. I think about this. ’Cause one thing, when you do this, companies seem very trivial. O.K.? I really mean that. They seem very trivial. But I have no income from Russia. I don’t do business with Russia. The gentleman that you mentioned, with his son, two nice people. But basically, they brought the Miss Universe pageant to Russia to open up, you know, one of their jobs. Perhaps the convention center where it was held. It was a nice evening, and I left. I left, you know, I left Moscow. It wasn’t Moscow, it was outside of Moscow.

Aside from the prompted feel of the question (as if Trump or Chris Ruddy set these reporters up to pose the questions so Trump could “warn” Mueller), it pertains only to business unrelated to Russia. Trump seems to admit that the mobbed up Russians buying his condos would be pertinent, his Miss Universe contest, and his serial efforts to get a Trump Tower in Moscow.

Even the example the NYT points to today — the involvement of UAE in some pre-inauguration meetings — pertains to Russia, as one of the points of the meetings were to set up a back channel with … Russia.

I think Jared Kushner’s business ties … that’s a different issue. But as to the substance of Trump’s purported red line, nothing in today’s report says Mueller has crossed that (even if he cared about such things).

Effectively, the NYT reporters who kept harping on a limit they themselves either set or parroted back on someone’s cue served to justify Trump’s own threats against Mueller and others. They had become the news.

It appears the same is true for the extended reporting — from the NYT, among others (though this NBC report is a rare exception) —  that Mueller is primarily investigating Trump for obstruction. For some time, the press has been reporting that Mueller is honing in on an obstruction case against Trump, seemingly without understanding that some things being labeled obstruction — such as the response to Mike Flynn lying about implementing the policy concessions to Russia Trump made in the transition period — actually went to prove the quo part of a quid pro quo.

And so, when NYT published their list of questions Mueller had given Trump’s lawyers, almost a third of which have nothing to do with obstruction and many others have to with have to do with both the conspiracy case in chief and obstruction, the headline focused exclusively on obstruction.

And while Mike Schmidt’s report on the questions does mention “Russian ties” and include two paragraphs on the questions that address topics besides obstruction, the lead might be read to focus on obstruction itself.

Robert S. Mueller III, the special counsel investigating Russia’s election interference, has at least four dozen questions on an exhaustive array of subjects he wants to ask President Trump to learn more about his ties to Russia and determine whether he obstructed the inquiry itself, according to a list of the questions obtained by The New York Times.

This morning, Trump predictably pointed to the list that one of his associates leaked, claiming to be outraged by a new “leak,” and asserted, evidence to the contrary, that the questions did not address “collusion.”

That, in turn, led a bunch of people on Twitter to try to fact check Trump, as if such “facts” would persuade either Trump (who is doing this to manipulate coverage, not to assert facts) or his followers (who wouldn’t believe the fact-checkers over Trump anyway).

Schmidt added this line to his own story, without acknowledging that his own outlet had “incorrectly” used a headline that backed Trump’s claim, even if the details themselves did not.

President Trump said on Twitter on Tuesday that it was “disgraceful” that questions the special counsel would like to ask him were publicly disclosed, and he incorrectly noted that there were no questions about collusion.

I get that Trump’s claims that the questions include none on the underlying conspiracy need to be debunked.

But one reason why he tweeted what he did is because it plays into a narrative that the press has long very credulously helped to create. What is needed now (indeed, what was needed months ago) is loud reporting that the whole obstruction emphasis was a distraction partly seeded by those being investigated for a conspiracy, a distraction in which the press was complicit.

As with the “red line” of Trump’s (non-Russian) business interests, the notion that he is being investigated only for obstruction is a tactic he has used, and used well, to play public opinion. Before trying to get the man to acknowledge public facts his team itself released, however, the press ought to consider how they’ve been doing just what Trump did this morning for months, ignoring the details that implicate him personally in “collusion.”

Stormy Weather Ahead

As you may have heard, there is an interview on CBS 60 Minutes tonight of former Trump paramour Stormy Daniels. In the last 48 hours, there have been a slew of Stormy biographies. From the New York Times, the Washington Post, and CNN. All worth a check if you are interested, but all paint a similar picture.

It is a picture of a modern empowered and self assured woman. She is no slouch, she is bright and ready. It was been all too casual for the press to early on slough her off and characterize her as a “porn star” like that automatically makes some throw away bimbo. Clearly, nothing is further from the case.

The picture that emerges on closer inspection is far different. She is an informed and savvy woman in full. She is a mother and businesswoman, and one who understands and worries about the conflicts between the two. Karen McDougal, in her Thursday interview on CNN came off as genuine and honest, even if somewhat lost in why she is here with all of the public now. Daniels has none of that. And her story is, within the salacious category Trump brings us to consider, far more compelling.

The stories of Daniels and McDougall were literally concurrent, starting with a golf tournament tete a tete at the Tahoe Pro Am. But McDougall presents as a jilted woman once in love, Daniels is flat out a smarter woman who knew then, and knows now, what was up, then and now, and just isn’t going to stand for the rank hypocrisy and lying by Trump and his goons like Michael Cohen.

The rushed out bios linked above largely track each other, but to my eye, the New York Times is the best:

Those who know her well have registered the moment differently. Ms. Clifford has subsisted amid the seamier elements of a business often rife with exploitation and unruly fare; more than a few of her film titles are unprintable. But for most of her professional life, Ms. Clifford has been a woman in control of her own narrative in a field where that can be uncommon. With an instinct for self-promotion, she evolved from “kindergarten circuit” stripper to star actress and director, and occasional mainstream success, by her late 20s. Why would a piece of paper and an executive legal team set her back?
….
“She was a very serious businesswoman and a filmmaker and had taken the reins of her career,” said Judd Apatow, who directed her cameos in the R-rated comedies “Knocked Up” and “The 40-Year-Old Virgin.” “She is not someone to be underestimated.”
….
She has a daughter, a third husband and an expensive hobby: equestrian shows. “She blends right in,” said Packy McGaughan, a trainer on the competition circuit.
….
“Just as these misguided arbiters of the mainstream view an adult entertainment star as an anathema to the political process,” she said, when she eventually decided against a bid, “so too do they view the dishwasher, the cashier or the bus driver.”

This woman is real. Please go read at least the NY Times story, if not the others linked. She is everything you think she is, and far, far, more. And she has no fear. Not of her career, and not of Trump. That has to terrify Trump.

Here is the other thing that is different: Stormy Daniels has Michael Avenatti as her lawyer. Never met or talked to Avenatti before, but I have heard of him in cases (and from auto racing things), and from friends, for several years. He is good.

After three years at O’Melveny, he joined Greene Broillet & Wheeler, a Los Angeles boutique litigation firm. While there, Michael spearheaded many high-profile cases, including a $10 million defamation case against Paris Hilton; a successful idea theft lawsuit involving the reality show The Apprentice and its producer, Mark Burnett, as well as Donald Trump; and a large corporate multi-national embezzlement case involving in excess of $42,000,000.

In 2007, Michael formed the law firm Eagan Avenatti, LLP (fka Eagan O’Malley & Avenatti, LLP), with offices in Newport Beach, Los Angeles and San Francisco. Since co-founding the firm, Michael has been responsible for securing a number of large verdicts and settlements as lead counsel, including an April 2017 $454 Million verdict after a jury trial in Federal Court in Los Angeles in a fraud case against Kimberly-Clark (NYSE: KMB) and Halyard Health (NYSE: HYH) that was featured on 60 Minutes (won every jury question as to every defendant); a $80.5 million class action settlement against Service Corporation International (NYSE: SCI) in another case featured on 60 Minutes and in the international press (settlement reached in the middle of trial); a $41 million jury verdict after a nearly five-week trial in New Jersey; a $39 million settlement in a case involving the alleged theft of trade secrets; and a $13 million plus verdict after a six week jury trial in Palm Beach, Florida (won every jury question as to every defendant). In 2015, Michael prevailed against the National Football League after a two-week jury trial in Federal District Court in Dallas, Texas after obtaining a court order requiring Jerry Jones to attend trial and be cross-examined.

I had heard of him before, but really first watched Avenatti when he took on the National Football League and Jerry Jones. Because of some sports law friends, some of whom were closer to that story, I paid attention. Avenatti is seriously that good, and he has the extra bonus of knowing how to be a good trial lawyer AND play the PR game, personally, well. There are not many such lawyers, and ones tending to the PR more than the law are routinely panned mercilessly here at this blog. For good reason.

If you don’t have a winning strategy with the press, don’t talk to the press. Even if you think you do, think twice and thrice before doing so. Or, by my book, just don’t do it. But Avenatti has a really special combination of savvy, and has proven it long before Stormy Daniels.

Nobody knows how it all ends up, and playing the press is a risky game even for those genuinely good at it. But, so far, Avenatti and Stormy have played Trump and the press like a Stradivarius.

And, if as Trump is reportedly contemplating, Trump decides to get personally aggressive, watch out. He may well have met his match with Ms. Daniels and Michael Avenatti. By my guess, they are almost making bank Trump will try that ill advised tact. Let it be. Please, let it be.

Why I Left The Intercept: The Surveillance Story They Let Go Untold for 15 Months

The Intercept has a long, must-read story from James Risen about the government’s targeting of him for his reporting on the war on terror. It’s self-serving in many ways — there are parts of his telling of the Wen Ho Lee, the Valerie Plame, and the Jeffrey Sterling stories he leaves out, which I may return to. But it provides a critical narrative of DOJ’s pursuit of him. He describes how DOJ tracked even his financial transactions with his kids (which I wrote about here).

The government eventually disclosed that they had not subpoenaed my phone records, but had subpoenaed the records of people with whom I was in contact. The government obtained my credit reports, along with my credit card and bank records, and hotel and flight records from my travel. They also monitored my financial transactions with my children, including cash I wired to one of my sons while he was studying in Europe.

He also reveals that DOJ sent him a letter suggesting he might be a subject of the investigation into Stellar Wind.

But in August 2007, I found out that the government hadn’t forgotten about me. Penny called to tell me that a FedEx envelope had arrived from the Justice Department. It was a letter saying the DOJ was conducting a criminal investigation into “the unauthorized disclosure of classified information” in “State of War.” The letter was apparently sent to satisfy the requirements of the Justice Department’s internal guidelines that lay out how prosecutors should proceed before issuing subpoenas to journalists to testify in criminal cases.

[snip]

When my lawyers called the Justice Department about the letter I had received, prosecutors refused to assure them that I was not a “subject” of their investigation. That was bad news. If I were considered a “subject,” rather than simply a witness, it meant the government hadn’t ruled out prosecuting me for publishing classified information or other alleged offenses.

But a key part of the story lays out the NYT’s refusals to report Risen’s Merlin story and its reluctance — until Risen threatened to scoop him with his book — to publish the Stellar Wind one.

Glenn Greenwald is rightly touting the piece, suggesting that the NYT was corrupt for acceding to the government’s wishes to hold the Stellar Wind story. But in doing so he suggests The Intercept would never do the same.

That’s not correct.

One of two reasons I left The Intercept is because John Cook did not want to publish a story I had written — it was drafted in the content management system — about how the government uses Section 702 to track cyberattacks. Given that The Intercept thinks such stories are newsworthy, I’m breaking my silence now to explain why I left The Intercept.

I was recruited to work with First Look before it was publicly announced. The initial discussions pertained to a full time job, with a generous salary. But along the way — after Glenn and Jeremy Scahill had already gotten a number of other people hired and as Pierre Omidyar started hearing from friends that the effort was out of control — the outlet decided that they were going to go in a different direction. They’d have journalists — Glenn and Jeremy counted as that. And they’d have bloggers, who would get paid less.

At that point, the discussion of hiring me turned into a discussion of a temporary part time hire. I should have balked at that point. What distinguishes my reporting from other journalists — that I’m document rather than source-focused (though by no means exclusively), to say nothing of the fact that I was the only journalist who had read both the released Snowden documents and the official government releases — should have been an asset to The Intercept. But I wanted to work on the Snowden documents, and so I agreed to those terms.

There were a lot of other reasons why, at that chaotic time, working at The Intercept was a pain in the ass. But nevertheless I set out to write stories I knew the Snowden documents would support. The most important one, I believed, was to document how the government was using upstream Section 702 for cybersecurity — something it had admitted in its very first releases, but something that it tried to hide as time went on. With Ryan Gallagher’s help, I soon had the proof of that.

The initial hook I wanted to use for the story was how, in testimony to PCLOB, government officials misleadingly suggested it only used upstream to collect on things like email addresses.

Bob Litt:

We then target selectors such as telephone numbers or email addresses that will produce foreign intelligence falling within the scope of the certifications.

[snip]

It is targeted collection based on selectors such as telephone numbers or email addresses where there’s reason to believe that the selector is relevant to a foreign intelligence purpose.

[snip]

It is also however selector-based, i.e. based on particular phone numbers or emails, things like phone numbers or emails.

Raj De:

Selectors are things like phone numbers and email addresses.

[snip]

A term like selector is just an operational term to refer to something like an email or phone number, directive being the legal process by which that’s effectuated, and tasking being the sort of internal government term for how you start the collection on a particular selector.

[snip]

So all collection under 702 is based on specific selectors, things like phone numbers or email addresses.

Brad Wiegmann:

A selector would typically be an email account or a phone number that you are targeting.

[snip]

So that’s when we say selector it’s really an arcane term that people wouldn’t understand, but it’s really phone numbers, email addresses, things like that.

[snip]

So putting those cases aside, in cases where we just kind of get it wrong, we think the email account or the phone is located overseas but it turns out that that’s wrong, or it turns out that we think it’s a non-U.S. person but it is a  U.S. person, we do review every single one to see if that’s the case.

That PCLOB’s witnesses so carefully obscured the fact that 702 is used to collect cybersecurity and other IP-based or other code collection is important for several reasons. First, because collection on a chat room or an encryption key, rather than an email thread, has very different First Amendment implications than collecting on the email of a target. But particularly within the cybersecurity function, identifying foreignness is going to be far more difficult to do because cyberattacks virtually by definition obscure their location, and you risk collecting on victims (whether they are hijacked websites or emails, or actual theft victims) as well as the perpetrator.

Moreover, the distinction was particularly critical because most of the privacy community did not know — many still don’t — how NSA interpreted the word “facility,” and therefore was missing this entire privacy-impacting aspect of the program (though Jameel Jaffer did raise the collection on IP addresses in the hearing).

I had, before writing up the piece, done the same kind of iterative work (one, two, three) I always do; the last of these would have been a worthy story for The Intercept, and did get covered elsewhere. That meant I had put in close to 25 hours working on the hearing before I did other work tied to the story at The Intercept.

I wrote up the story and started talking to John Cook, who had only recently been brought in, about publishing it. He told me that the use of 702 with cyber sounded like a good application (it is!), so why would we want to expose it. I laid out why it would be questionably legal under the 2011 John Bates opinion, but in any case would have very different privacy implications than the terrorism function that the government liked to harp on.

In the end, Cook softened his stance against spiking the story. He told me to keep reporting on it. But in the same conversation, I told him I was no longer willing to work in a part time capacity for the outlet, because it meant The Intercept benefitted from the iterative work that was as much a part of my method as meetings with sources that reveal no big scoop. I told him I was no longer willing to work for The Intercept for free.

Cook’s response to that was to exclude me from the first meeting at which all Intercept reporters would be meeting. The two things together — the refusal to pay me for work and expertise that would be critical to Intercept stories, as well as the reluctance to report what was an important surveillance story, not to mention Cook’s apparent opinion I was not a worthy journalist — are why I left.

And so, in addition to losing the person who could report on both the substance and the policy of the spying that was so central to the Snowden archives, the story didn’t get told until 15 months later, by two journalists with whom I had previously discussed 702’s cybersecurity function specifically with regards to the Snowden archive. In the interim period, the government got approval for the Tor exception (which I remain the only reporter to have covered), an application that might have been scrutinized more closely had the privacy community been discussing the privacy implications of collecting location-obscured data in the interim.

As recently as November, The Intercept asked me questions about how 702 is actually implemented because I am, after all, the expert.

So by all means, read The Intercept’s story about how the NYT refused to report on certain stories. But know that The Intercept has not always been above such things itself. In 2014 it was reluctant to publish a story the NYT thought was newsworthy by the time they got around to publishing it 15 months later.

Why Call Alice Donovan a Troll?

The WaPo and CounterPunch have the story of Alice Donovan, a pseudonymous persona the FBI suspected (it’s not clear starting when) of being part of a Russian influence operation. The WaPo makes it clear sources told them about the investigation (though without clearly revealing when FBI identified Donovan or when they learned about the investigation) and leaked the report behind this story (or perhaps it is all one report).

The FBI was tracking Donovan as part of a months-long counterintelligence operation code-named “NorthernNight.” Internal bureau reports described her as a pseudonymous foot soldier in an army of Kremlin-led trolls seeking to undermine America’s democratic institutions.

[snip]

The events surrounding the FBI’s NorthernNight investigation follow a pattern that repeated for years as the Russian threat was building: U.S. intelligence and law enforcement agencies saw some warning signs of Russian meddling in Europe and later in the United States but never fully grasped the breadth of the Kremlin’s ambitions.

CP first learned about it when Adam Entous called about the leaked intelligence report on her.

We received a call on Thursday morning, November 30, from Adam Entous, a national security reporter at the Washington Post. Entous said that he had a weird question to ask about one of our contributors. What did we know about Alice Donovan? It was indeed an odd question. The name was only faintly familiar. Entous said that he was asking because he’d been leaked an FBI document alleging that “Alice Donovan” was a fictitious identity with some relationship to Russia. He described the FBI document as stating that “Donovan” began pitching stories to websites in early 2016. The document cites an article titled “Cyberwarfare: Challenge of Tomorrow.”

And CP reveals they first came to believe that Donovan was fake (and not just a serial plagiarist) when a NYT story listed Donovan’s account among those that Facebook had shut down as fake.

This long story focused on dozens of phony Facebook accounts which the Times claims pushed pro-Russian messages during the election. Buried in the 28th paragraph of the story was the name “Alice Donovan.” Donovan’s Facebook page, the Times said, “pointed to documents from Mr. Soros’s Open Society Foundations that she said showed its pro-American tilt and — in rather formal language for Facebook — describe eventual means and plans of supporting opposition movements, groups or individuals in various countries.’” According to the Times, Facebook had deactivated the Donovan account after it failed a verification protocol.

CP ends by noting that for the entirety of the period when FBI was investigating this pseudonymous persona, they never informed CP.

If the FBI was so worried about the risks posed by Alice Donovan’s false persona, they could have tipped off some of the media outlets she was corresponding with. But in this case they refrained for nearly two years. Perhaps they concluded that Donovan was the hapless and ineffectual persona she appears to be. More likely, they wanted to continue tracking her. But they couldn’t do that without also snooping on American journalists and that represents an icy intrusion on the First Amendment. For a free press to function, journalists need to be free to communicate with whomever they want, without fear that their exchanges are being monitored by federal agencies. A free press needs to be free to make mistakes and learn from them. We did.

It’s an interesting example — and given my prior focus on Facebook’s intelligence apparatus (one reiterated by the revelation that Facebook has been taking down NK infrastructure of its own accord) — one that raises questions about whether FBI identified this persona or FB did.

But I’m wondering why both WaPo and CP are calling the Donovan persona a troll. While it sounds like Donovan’s election related interventions were trollish about Hillary, some of what she published at CP and other outlets clearly supported Russian policy objectives (that CP might legitimately agree with) or — as CP notes — mirrored mainstream reporting on Clinton’s emails.

Donovan served not just to poison debate, as trolls do.

So I’m wondering why people are using that term. I’m wondering, in part, why we should distinguish Donovan’s authorship (or plagiarism) of articles from leaks from foreign intelligence services, which news articles have long relied on, whether Israeli, Saudi, or Russian sources (remember, for example, how presumed Yemeni or Saudi sources have repeatedly revealed details of US or UK double agents). A number of people in DC have laughed with me about the way that Rinat Akhmetshin — a central figure in the June 9, 2016 Trump Tower meeting and as such suspected of doing Russian intelligence bidding — has long regaled mainstream journalists as a source. And I’ve suggested that Scott Balber — and American lawyer working for a Russian oligarch — may be fostering a cover story for the same meeting.

So why is one kind of intelligence disinformation called journalism and another called trolling?

Two Addendums To Ben Wittes’ “How to Read an Investigation”

It’s September 4, 2017. I’m going to say something nice about Ben Wittes.

His post, How to Read a News Story About an Investigation: Eight Tips on Who Is Saying What, is a useful primer for how to read all these stories about the investigations into the Russian hacks. As someone who covered the last major Presidential investigation (the CIA Leak Investigation) far more closely than Ben, in large point because the sourcing on those stories was so badly abused, I’ve been thinking about a similar post on how to cover such cases (which would include the advice “don’t do tick tick tick boom tweets because they turn our legal system into a game”). I’d include much of what he wrote here. I have slightly to significantly less faith in the sourcing rigor of journalists than Ben does — a skepticism that served me well even before the time we learned Pulitzer prize winner Judy Miller agreed to refer to the Vice President’s Chief of Staff as a “former Congressional staffer” to hide that leaked classified information (possibly including Plame’s identity) came from the vicinity of PapaDick. But in general this is a useful start.

I’d two more general rules, though. First, while Ben implicitly suggests you need to consider the beat of the journalists in question in this passage, I’d make it an explicit rule. Consider the beat of the journalist writing the story.

The story is attributed “to interviews with a dozen administration officials and others briefed on the matter.” This is a show of strength upfront on the part of reporters Michael Schmidt and Maggie Haberman (who, as an antecedent matter, both have a great deal of credibility with me). They are signaling that their sourcing is broad and that at least some of it comes from within the executive branch (“administration officials”). Applying Rule No. 5, note that this wording is consistent both with sources attached to the investigation and with sources in the White House or in the Justice Department. Note also that Haberman is a White House reporter famously well-sourced with the group of people immediately around President Trump.

The sources for the triumvirate behind a long string of big WaPo Russian stories — Greg Miller, Ellen Nakashima, and Adam Entous — are going be different than the sources for the more recent triumvirate leading the pack on Russia stories — Carol Leonnig, Tom Hamburger and Rosalind Helderman, and it makes a difference on the impartiality of the sources.

In addition, while Ben describes how much lawyers who aren’t prosecutors like to leak (prosecution teams do leak, but very very very carefully), he doesn’t say something else. Leaking to the press is a very good way for co-conspirators to communicate with each other, without risking obstruction charges for doing so. So when you’re trying to understand why a likely legal source is leaking something, it’s worth considering what information that passes on to co-conspirators. For example, such leaks are a good way to compare notes on a false story. Or, in the case of dumb Don Jr who released the emails behind the June 9 meeting, it’s a way to ensure that your co-conspirators know what evidence that might previously have been hidden law enforcement may be looking at. So it’s not just a good idea to remember that lawyers leak a lot (and if those lawyers’ clients just appeared before the grand jury, their information about questions raised would only be second-hand). It’s a good idea to consider what information is not actually intended for you, the dear reader, but rather is intended for co-conspirators, up to and including the pardoner-in-chief.

Can’t Stop/Won’t Stop: CNN Has A New Racist Bigot Apologist

You may remember that CNN recently terminated their go to racist bigot Trumpian apologist asshole, Jeffrey Lord.

As Politico succinctly put it:

CNN on Thursday fired contributor and staunch Trump supporter Jeffrey Lord after he tweeted a Nazi salute.

Well, yes. That is literally the least you could say about Jeff Lord’s “contributions” to CNN. He was, from the start, an unnecessary, and in the face of competent journalism and reportage, complete plant by Jeff Zucker into the CNN family and reportage to do NOTHING but assuage the idiot extremist right wing racist assholes who were watching FoxNews to start with. In short it was insane and counterproductive programming to cater to ignorant racist people that hated, and were not watching, CNN to start with.

The presence of Jeff Lord on CNN was an affront on common intelligence, good journalism and root morality. But there he was. Until Lord actually displayed his inner Trumpian Nazism that was clear under the veneer from moment one, and was the exact reason Zucker and CNN hired and paid the jerk to start with. Jeff Lord was exactly who Zucker and CNN bought and paid for from moment one. He was exactly what they cravenly wanted.

So, did Jeff Zucker, and the worthy geniuses at CNN, learn any lessons by having promoted a clear cut immoral asshole racist Nazi like Lord?

Nope. They have simply found and cultivated a new one.

Today’s version (and seen on CNN!) is Trumpalo Michael Caputo, who had these gems to say on CNN’s The State of the Union show today:

“Our Department of Justice under Obama was the most political Department of Justice in modern times”

Well Mike, that is not quite right. In fact, that would have been the DOJ under George Bush, who your boy Trump is making look good at warp speed. Here is thanks to Senator Sheldon Whitehouse back in 2007, is a graph of political appointee communication of the Clinton White House with the Department of Justice:

Here is, again from Senator Whitehouse, an identical chart of the contacts of the contacts from the Bush/Cheney White House:

Ooof, if you want to talk about root politicization of the DOJ, that is pretty telling, even without going into the Monica Goodling/Karl Rove nonsense.

Caputo goes on to belligerently defend Trump

“…against all this talk of racism”

So, eh, no. For Caputo, in the face of what Trump is doing vis a vis the DOJ, whether firing the Director of the FBI for not covering his ass or asking his Attorney General to kill an investigation of his largest racist supporter Arpaio, is just another hired liar.

But having such an immoral liar to balance actual truth and fair reportage with absolute flat earth level racism horse manure from Trumpland, is what Jeff Zucker and CNN demands. They simply cannot fathom presenting the former without salting it with the latter.

Ted Turner must be beside himself somewhere in Montana. The demand of media, in this case CNN, to “both sides” even in the face of grossly immoral and unconscionable racism and bigotry, is insane. It needs to stop. There is no need to put on an apologist like Michael Caputo just to say you did so. It added nothing, but support for rank ignorance and bigotry. That is not what America’s media should be about.

How the “Fake News” Panic Fed Breitbart

In just about every piece I wrote on “fake news” in the last year, I argued that the most influential piece of fake news of the campaign came not from the Russians, but instead from Fox News, in the form of Bret Baier’s early November “scoop” that Hillary Clinton would soon be indicted.

I was partly wrong about that claim. But substantially correct.

That’s the conclusion drawn by a report released by Harvard’s Berkman Klein Center last week. The report showed that the key dynamic behind Trump’s win came from the asymmetric polarization of our media sphere, embodied most dramatically in the way that Breitbart not only created a bubble for conservatives, but affected the overall agenda of the press, particularly with immigration (a conclusion that is all the more important given Steve Bannon’s return to Breitbart just as white supremacist protests gather in intensity).

So I was correct that the most important fake news was coming from right wing sites. I just pointed to Fox News, instead of the increasingly dominant Breitbart (notably, while Baier retracted his indictment claim, Breitbart didn’t stop magnifying it).

Here’s what the report had to say about the “fake news” that many liberals instead focused on.

Our data suggest that the “fake news” framing of what happened in the 2016 campaign, which received much post-election attention, is a distraction. Moreover, it appears to reinforce and buy into a major theme of the Trump campaign: that news cannot be trusted. The wave of attention to fake news is grounded in a real phenomenon, but at least in the 2016 election it seems to have played a relatively small role in the overall scheme of things. We do indeed find stories in our data set that come from sites, like Ending the Fed, intended as political clickbait to make a profit from Facebook, often with no real interest in the political outcome. But while individual stories may have succeeded in getting attention, these stories are usually of tertiary significance. In a scan of the 100 most shared stories in our Twitter and Facebook sets, the most widely shared fake news stories (in this sense of profit-driven Facebook clickbait) were ranked 66th and 55th by Twitter and Facebook shares, respectively, and on both Twitter and Facebook only two of the top 100 stories were from such sites. Out of two million stories, that may seem significant, but in the scheme of an election, it seems more likely to have yielded returns to its propagators than to have actually swayed opinions in significant measure. When we look at our data week by week, prominent fake news stories of this “Macedonian” type are rare and were almost never among the most significant 10 or 20 stories of the week, much less the election as a whole. Disinformation and propaganda from dedicated partisan sites on both sides of the political divide played a much greater role in the election. It was more rampant, though, on the right than on the left, as it took root in the dominant partisan media on the right, including Breitbart, Daily Caller, and Fox News. Moreover, the most successful examples of these political clickbait stories are enmeshed in a network of sites that have already created, circulated, and validated a set of narrative lines and tropes familiar within their network. The clickbait sites merely repackage and retransmit these already widely shared stories. We document this dynamic for one of the most successful such political clickbait stories, published by Ending the Fed, in the last chapter of this report, and we put it in the context of the much more important role played by Breitbart, Fox News, and the Daily Caller in reorienting the public conversation after the Democratic convention around the asserted improprieties associated with the Clinton Foundation.

Our observations suggest that fixing the American public sphere may be much harder than we would like. One feature of the more widely circulated explanations of our “post-truth” moment—fake news sites seeking Facebook advertising, Russia engaging in a propaganda war, or information overload leading confused voters to fail to distinguish facts from false or misleading reporting—is that these are clearly inconsistent with democratic values, and the need for interventions to respond to them is more or less indisputable. If profit-driven fake news is the problem, solutions like urging Facebook or Google to use technical mechanisms to identify fake news sites and silence them by denying them advertising revenue or downgrading the visibility of their sites seem, on their face, not to conflict with any democratic values. Similarly, if a foreign power is seeking to influence our democratic process by propagandistic means, then having the intelligence community determine how this is being done and stop it is normatively unproblematic. If readers are simply confused, then developing tools that will feed them fact-checking metrics while they select and read stories might help. These approaches may contribute to solving the disorientation in the public sphere, but our observations suggest that they will be working on the margins of the core challenge.

As the report notes, it would be easy if our news got poisoned chiefly by Russia or Macedonian teenagers, because that would be far easier to deal with than the fact that First Amendment protected free speech instead skewed our political debate so badly as to elect Trump. But addressing Russian propaganda or Facebook algorithms will still leave the underlying structure of a dangerously powerful and unhinged right wing noise machine intact.

Which makes “fake news,” like potential poll tampering even as state after state suppresses the vote of likely Democratic voters, another area where screaming about Russian influence distracts from the more proximate threat.

Or perhaps the focus on “fake news” is even worse. As the Berkman report notes, when rational observers spend inordinate time suggesting that fake news dominated the election when in fact sensational far right news did, it only normalizes the far right (and Trump) claims that the news is fake. Not to mention the way labeling further left, but totally legitimate, outlets as fake news normalized coverage even further to the right than the asymmetric environment already was.

Fake news is a problem — as is the increasing collapse in confidence in US ideology generally. But it’s not a bigger problem than Breitbart. And as Bannon returns to his natural lair, the left needs to turn its attention to the far harder, but far more important, challenge of Breitbart.

The “Liberal” NY Times Focuses on the Next Disastrous GOP Daddy

It is never enough for the “liberal” media. Despite how the “liberal media” gets relentlessly dumped on and marginalized by the right wing nut machine, they are ALWAYS there to hand out some candy to the nutters.

Here are the estimable Jonathan Martin and Alexander Burns in the Only Bunk That’s Fits To Print Gray Lady:

WASHINGTON — Senators Tom Cotton and Ben Sasse have already been to Iowa this year, Gov. John Kasich is eyeing a return visit to New Hampshire, and Mike Pence’s schedule is so full of political events that Republicans joke that he is acting more like a second-term vice president hoping to clear the field than a No. 2 sworn in a little over six months ago.

Well, crikey, good that the paper of record is covering this. What else they got?

It may get worse, said Jay Bergman, an Illinois petroleum executive and a leading Republican donor. Grievous setbacks in the midterm elections of 2018 could bolster challengers in the party.

“If the Republicans have lost a lot of seats in the Congress and they blame Trump for it, then there are going to be people who emerge who are political opportunists,” Mr. Bergman said.

Well, sorry I asked, turned out it was some entitled crap from a “petroleum executive”. Great call guys!

Swell. Excellent follow up to all those “Ignorant average Trump voters still ignorantly averagely love Trump” reports that are rampant in the beloved balanced media.

Today’s GOP, fronted by Trump and his ilk, is NOT an aberration, but rather the culmination of where the Republican party has been headed for decades, since at least Reagan’s bigoted opening salvo in Philadelphia Mississippi. It is the party of nationalism, racism, bigotry, scientific ignorance and revanchism.

But, hey, never underestimate the ability of the national media to keep on singing like they don’t know their actions helped put this country in the lurch it is in (Her Emails!!). And that their continued refusal to unequivocally call out the current President for the blithering dangerous loon he is, may lead to making the lurch far worse.

The answer to America’s ills do NOT come from the discredited daddies in the GOP, whether older like Mike Pence and John Kasich, or younger like Ben Sasse. We have seen this movie before, and it sucks in a very disastrous way.

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