Monday, September 16, 2013
We don't like you so we won't answer the phone / read your letters / turn on our fax machine. (This in an era when you don't actually need hardware to receive faxes...)
The NSA's "Transparency" Thwarted... By A Fax Machine
Starting two weeks ago, requests faxed to the Office of the Secretary of Defense (OSD) started coming back as undeliverable. After several subsequent attempts and troubleshooting on our end, MuckRock reached out to the OSD. Sure enough, their fax machine is down... possibly until November.
… It bears repeating: The office that oversees the most powerful military in history (not to mention the best-funded) is unable to project when its single fax machine will once again be operational.
So maybe I am a “Journalist?”
Watching the Senate Judiciary Committee (SJC) hearing on the “Free Flow of Information Act” (reporter’s shield law), I was concerned by remarks made by Senator Dianne Feinstein. The Senator offered an amendment that would restrict the shield or privilege to those whom she considers “real reporters.” Senator Cornyn argued persuasively – but not persuasively enough, it seems – that Congress should not be in the business of defining “journalist,” a point that has been raised by others, including EFF, who argue that it would be better to define “journalism” than “journalist.” Despite the opposition from Cornyn and other Republicans on the committee, Feinstein’s amendment passed 13-5 and the bill made it out of committee, leading me to tweet:
So I gather I wouldn’t be covered by the #shieldlaw even though I do some investigative journalism and report on it. Thanks for nuthin’, SJC
— Dissent Doe (@PogoWasRight) September 12, 2013
To my surprise, media lawyer Kurt Wimmer replied:
@PogoWasRight I think you’d be covered!
— Kurt Wimmer (@kurtwimmer) September 12, 2013
In follow-up e-mail communications, I encouraged Kurt, who’s a partner at Covington & Burling, to blog about the bill and how it affects bloggers/citizen journalists. Kurt had been honored for his work in trying to get a reporter’s shield law several years ago, and his firm is part of the coalition trying to get FFIA passed. Although some might see that as a reason not to trust his interpretation of the language of the bill as amended, I think it’s exactly the reason that we should consider his interpretation of the language seriously. In the interest of full disclosure, I should also note that I also have tremendous regard for Kurt and his dedication to representing the rights of bloggers because he and his firm represented me and PogoWasRight.org when this blog was sued a few years ago.
And so Kurt and Jeff Kosseff have written a blog post on InsidePrivacy about the bill, as amended. Here’s an excerpt from what they wrote:
Some blogs and new (sic) reports have erroneously stated that the FFIA would only cover “credentialed” or salaried journalists who work for mainstream media. The legislation, in fact, provides strong protection for new-media journalists, including bloggers.
The FFIA covers individuals who gather news and information for the public, regardless of their medium. The protection applies equally to new media, such as blogs, web sites, and news apps, and traditional media, such as newspapers, magazines, and broadcasters. The bill states that it covers journalists who distribute news “in print, electronic, or other format,” and it explicitly mentions websites and mobile apps.
You can read their full post here.
To supplement their post, I asked Kurt whether he thought the term “regular” in the second definition of “covered journalist” (below) posed any concerns for citizen journalists/bloggers:
(bb) with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, engages, or as of the relevant date engaged, in the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters by—
“Regular” has a fairly straightforward definition in the case law, and we expect that there also may be some legislative history that will put some more definition around that concept. In my own view, so long as it is the general practice of the blogger in question to gather information for publication to the general public or engage in the other activities mentioned in that section, a blogger should be covered. The reason for that section generally is to ensure that the bill covers people who really engage in journalism, rather than people who just luck into information that they want to keep away from law enforcement. This has been true of efforts to protect confidential sources, dating back to a gossip columnist sued by Judy Garland in 1959. The test, which the Second Circuit formalized in the Von Bulow case, focuses on whether the subject was engaging in journalistic activities at the time the confidential source material was obtained. Otherwise, someone who isn’t a blogger or writer at all could claim to be starting a blog, writing a book, or marketing a script when confidential information happens to fall into their lap. That’s never been covered under the federal common law privilege or any of the state shield laws, and this bill would be consistent with that concept.
I also asked Kurt for his reaction to criticism by EFF and others that the bill would be better if it focused on defining “journalism” instead of “journalist.” He responded:
I was actually puzzled by EFF”s criticism — it’s as if their writer hadn’t read the Senate bill. The section of the bill that we have been discussing actually does define journalism. Those who are covered under the bill are those who meet that test. So in my view, the Senate bill (both the original version that EFF wrote about, and certainly the bill now as amended) really does focus on defining “journalism.” Those covered are those engaging in journalism. I don’t know how else you can do it, given that the rest of the bill depends on identifying a particular person who then has the benefit of the privilege set out in Section 2 of the bill — at some point, you have to decide who is “covered.”
If Kurt’s correct, that would be good news for bloggers like myself or those who file under FOI to obtain information to incorporate in their coverage of topics of public interest, or who reach out to news sources to get comments on current news stories.. Of course, the shield law doesn’t protect any journalist absolutely as there are exemptions built into the bill addressing national security concerns and other issues. But if, as Kurt and Jeff assert, the federal law would protect bloggers when state laws don’t, we may be gaining some protections we did not have. Kurt also sees the bill as providing more protection in some highly publicized cases:
… this bill would apply, if it is passed quickly enough, to Jim Risen’s case in the Fourth Circuit, in which he is in imminent danger of being jailed because of his attempt to protect a confidential source in the Jeffrey Sterling prosecution. It also would have prevented the AP subpoena, and the Fox News/Jim Rosen subpoena.
That will be of small comfort, though, to organizations like WikiLeaks and Cryptome who are seemingly intentionally excluded from coverage. Matt Drudge, who might be described as a news aggregator rather than a reporter or someone who conducts original interviews or investigation, also seems to think he’d be excluded from coverage. He tweeted:
Federal judge once ruled Drudge ‘is not a reporter, a journalist, or a newsgatherer.’ Millions of readers a day come for cooking recipes??!
I asked Kurt what changes, if any, he would like to see in the bill when it comes up on the Senate floor? He replied:
There are some elements in the House version of the bill that I do like, and it would be great if those might become a part of the Senate bill. The House bill, in particular, covers all journalistic work product, not just confidential source information. That’s pretty important, because maintaining the confidentiality of the work product of journalists is an essential element of protecting free expression. For the most part, though, I think the Senate bill reflects a careful balancing of a lot of competing values.
Obviously, this is a controversial bill and many will not agree with Kurt’s interpretation or view. So have at it in the “Comments” section if you wish.
I get the impression that Facebook made this much easier for websites that developing their own sign-in tools.
New on LLRX – Mandatory Facebook login for users trying to gain access to a third-party service
Professor Annemarie Bridy challenges the increasingly common use of mandatory Facebook login for Internet users trying to gain access to a third-party service – including posting comments to news stories, as well as viewing white papers, studies, reports and other documents.
How they are supposed do it.
The 2013 OECD Privacy Guidelines
“Over many decades the OECD has played an important role in promoting respect for privacy as a fundamental value and a condition for the free flow of personal data across borders. The cornerstone of OECD work on privacy is its newly revised Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (2013). Another key component of work in this area aims to improve cross-border co-operation [You grab data from my citizens, I'll grab data from your's.. Bob] among privacy law enforcement authorities. This work produced an OECD Recommendation on Cross-border Co-operation in the Enforcement of Laws Protecting Privacy in 2007 and inspired the formation of the Global Privacy Enforcement Network, to which the OECD provides support. Other projects have examined privacy notices and considered privacy in the context of horizontal issues such as radio frequency indentification (RFID), digital identity management, and looked at metrics to inform policy making in these areas. The important role of privacy is also addressed in the OECD Recommendation on Principles for Internet Policy Making (2011) and the Seoul Ministerial Declaration on the Future of the Internet Economy (2008). Current work is examining privacy-related issues raised by large-scale data use and analytics. It is part of a broader project on the data-driven innovation and growth, which already produced a preliminary report identifying key issues.”
Something tells me Miley was looking to be “Banned in Boston” all along. She should be thrilled.
Here's the Miley Cyrus Web censor you've been waiting for
I don’t know why you would ever want to, but a new browser plugin allows you to erase Miley Cyrus from their Internet.
The free Google Chrome extension, “No Cyrus,” replaces all mentions of the controversial pop singer, along with related terms like “twerk” and “wrecking ball,” with pound signs.
Interesting question for my Statistics students: Would pirates give you a different “favorite show” list that Nielson ratings?
Netflix follows the pirates to decide which shows to pick up
While an opponent of illegal downloading, the streaming service tracks popular piracy targets to determine which programs to offer its customers.
For my Programming students. Ranges from K-12 to collegel level, so there is a lot to sort through.
Teach kids programming
A collection of resources
(Related) Be the one who automates someone else's job!
Report – Nearly Half of U.S. Jobs Are Vulnerable to Computerization
MIT Technology Review: “Rapid advances in technology have long represented a serious potential threat to many jobs ordinarily performed by people. A recent report (which is not online, but summarized here) from the Oxford Martin School’s Programme on the Impacts of Future Technology attempts to quantify the extent of that threat. It concludes that 45 percent of American jobs are at high risk of being taken by computers within the next two decades. [Lots of opportunity! Bob] The authors believe this takeover will happen in two stages. First, computers will start replacing people in especially vulnerable fields like transportation/logistics, production labor, and administrative support. Jobs in services, sales, and construction may also be lost in this first stage. Then, the rate of replacement will slow down due to bottlenecks in harder-to-automate fields such engineering. This “technological plateau” will be followed by a second wave of computerization, dependent upon the development of good artificial intelligence. This could next put jobs in management, science and engineering, and the arts at risk.”
For my Ethical Hackers. Dilbert gives us another example of “Why it's good to be a hacker!”