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—
Kurt responded:
“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!”
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