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Thursday, November 24, 2005

Words that Kill and Bombs That Chill

While the First Amendment, of course, relates only to freedom of expression in the United States, it’s instructive to look at attacks on freedom of expression in democracies beyond our borders. Especially when they are designed to hide the truth about war and involve the United States.

National newspapers in the United Kingdom have been bitch slapped with an unprecedented gag order under the Official Secrets Act, under which they wll be prosecuted if they publish a leaked sensitive five-page memo containing politically embarrassing details of face-to-face exchanges between Prime Minister Tony Blair and President George W. Bush, in the White House in April 2004

Next week, Leo O 'Connor, a researcher to Labour MP Tony Clarke and David Keogh, a former Cabinet Office official, will appear before Bow Street magistrates where they face prosecution under Britain’s Official Secrets Act.

National newspaper, the Daily Mirror published a memo on a conversation between Blair and Bush, which not only included strong disagreement between the two over the heavy-handedness of the attack in Fallujah in Iraq, but recorded a threat by President Bush to “take military action” against Arabic TV station, al-Jazeera, for daring to show pictures of the attack that killed over 1000 civilians. U.S General were apparently infuriated -- perhaps more than the families of the civilians killed -- that the pictures had been broadcast. Secretary of Defense, Donald Rumsfeld, called al Jazeera’s actions “vicious, inaccurate and inexcusable.”

Her Majesty’s Attorney General, the long-winded, The Right Honourable The Lord Goldsmith QC, was, ironically, prior to becoming Attorney General, co-Chairman of the IBA’s Human Rights Institute, and was the Prime Minister’s Personal Representative to the Convention for the European Charter of Fundamental Rights. Could this be where he learnt to respect the rights of a free press?

Lord Goldsmith’s decision to prosecute a journalist under the Official Secrets Act is said to be unprecedented, according to Andrew Nicol, a media expert quoted in an article in The Guardian.

In an article in The Nation, Jeremy Scahill wrote the following:

Given Washington's record of attacking Al Jazeera both militarily and verbally, it is not outside the realm of possibility that the Bush Administration could have simply decided that it was time to take the network out. What is needed now is for a British newspaper or magazine to publish the memo for all the world to see--and if they face legal action, they should be backed up by every major media organization in the world. If true, Bush's threat is a bold confirmation of what many journalists already believe: that the Bush Administration views us all as enemy combatants.

One thing is certain. The bombing of a news organization by the United States military on instruction by the President won’t have a chilling effect. It will be sizzling.

Also, under the United Kingdom’s new and controversial Terrorism Bill, the Government proposed a new criminal offence of indirectly encouraging acts of terrorism including by means of glorifying them. In response to the horrific suicide bombing of Maxim’s restaurant in Haifa, Israel by 29 year old lawyer Hanadi Tayseer Jaradat, I created an image, Bloody Mary, designed to question the notion of glorification as well as glory in the context of war and belief. Not to glorify terrorism, but to attempt to understand it. At the time I created the image, I wrote:

More than ever, we need to understand the psychology. What desperation, anguish and confusion compel a beautiful, educated young woman to blow herself up, taking out twenty one innocent diners with her? What horror have such eyes witnessed, what hope diminished, what possibility snuffed out? There will never be peace in the Middle East as long as we ignore the reality of what is happening, silence enlightening opinions, or refuse, point blank, to even try to understand. Failure to understand, much less observe, is no longer an option.
Lord Goldsmith believes that turning a blind eye, stifling expression by vague definitions and insidious prosecutions that enable liars and condone violence and half truths to shape the debate will make his nation safer. He couldn’t be more misguided, and with the package of goods he's trying to sell, Britain couldn’t be lulled into a more false sense of security.

Wednesday, November 16, 2005

Black Sites and Digital Rights

The following cover on deals with an intersection between freedom, secrecy, honesty and technology. Where secret "black sites" are installed by the CIA in other countries, and secret "rootkits" are installed onto your hardrive by Sony.

The fabulous thing about a culture that rewards those who shirk responsibility and accountability is that it engenders such arrogance that the self-absorbed perpetrators do a better job of digging their own graves than anyone else could ever wish to.

Cases in point. Let’s begin with Sony BMG, who arrogantly decided to secretly install a rootkit -- a hacking tool widely considered to be spyware -- in the computers of their consumers (without their permission) as a component of XPC, the digital rights management technology they used, developed by a small but arrogant upstart start-up in the UK, First 4 Internet.

All it took was one smart and enterprising expert by the name of Mark Russinovich to reveal the sneak attack by Sony – and make no mistake; this was nothing short of an outright attack on its own customer base. And under the U.S. Computer Fraud and Abuse Act, which can carry fines and prison terms for anyone who "knowingly causes the transmission of a program ... and as a result of such conduct, intentionally causes damage, without authorization, to a protected computer," Sony’s attack is not simply malicious, it’s criminal.

Thomas Hesse, Sony BMG's Global Digital Business President, dismissively downplayed the violation before an avalanche of negative publicity forced Sony to not simply apologize, but to withdraw the CD’s containing the XPC and offer compensation. (If not to ward of criminal and class action civil lawsuits). "Most people, I think, don't even know what a rootkit is, so why should they care about it?" he said in a November 4, 2005 interview on National Public Radio's Morning Edition. Where oh where is Courtney Love when one needs her?

While Sony BMG deserves everything flung their way, it should be remembered that their CEO since August 2004, Andy Lack, a virgin in the music industry, previously served as President and Chief Operating Officer for NBC, overseeing among other things, entertainment, news and MSNBC. This is the man who claims to have redefined “news” by exploiting JonBenet Ramsey more in her death than she was in her short little life.

Sony is already trying to distance itself from First 4 Internet from whom it licensed the XCP malware. The regret is best expressed by the pomposity of First 4 Internet's CEO, Mathew Gilliat-Smith, who told CNET: “I think this is slightly old news… Obviously there are a lot of people who don't like the technology, and we will take note if we need to.” Take note, you do need to.

As if criminal activity that might have occurred is lessened by the passage of time.

As a matter of fact, aside from making your hard drives vulnerable to gang rapes, the other technology First 4 Internet develops is called ICA (Image Composition Analysis) which they market as being the closest thing to artificial intelligence in terms of filtering “pornographic” and “inappropriate” content, by supposedly using text, image and context filters. But at the end of the day, this too, will fall short of the hype or deliver the wrong result and the wrong message. Yep, those exercising inappropriate conduct have designed technology to discern inappropriate content.

They believe, for instance, that they can differentiate between Dirty Daisy and Ann Coulter, even if Daisy is sitting demurely with her legs crossed in a men’s locker room, or Ann is sitting, typically, in a mini skirt with her legs open on the set of Hannity and Colmes. And yes, they know the difference between Michelangelo’s David and Chi Chi LaRue’s David because Michelangelo’s David is so inadequately endowed it would probably be tagged as kiddie porn.

I haven’t studied their technology with the precison of a Mark Russinovich, but let’s just say I’m skeptical. If First 4 Internet or Mathew Gilliat-Smith doesn’t like what I have to say, I’ll take note if I need to.

When Washington Post’s Dana Priest recently reported on the existence of a "covert prison system" or “black sites” set up by the CIA four years ago, her use of confidential sources sparked outrage – particularly as Washington is still reeling from the Valerie Plame CIA outing.

Senate Majority Leader Bill Frist (R-Tenn.) fired off a strongly worded request that a bicameral investigation into the disclosure be convened immediately. Until fellow Republican, Trent Lott, suggested Republicans were most likely the source of the leak (again!). Sen. Pat Roberts (R-Kan.) followed, suggesting waiting until the Justice Department completes its own inquiry.

The “black sites” are nothing short of Stalin style gulags where the CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe. Instead of worrying about the reports of illegal detention, cruel and inhumane torture and other horrors that further damage America’s frayed credibility, Frist revealed where his real concerns lie: “I am not concerned about what goes on and I'm not going to comment about the nature of that...My concern is with leaks of information that jeopardize your safety and security – period. That is a legitimate concern."

President Bush insists America does not torture. As he threatens his first ever veto if congress refuses to exempt the CIA from "cruel, inhuman or degrading treatment" of detainees. And as Dick Cheney trolls the back halls of congress, browbeating and ripping the toenails off any senators that opt for humane treatment of prisoners by the CIA. The senate voted 90 – 0 to include the CIA in America’s policy regarding the detention and interrogation of prisoners, both at home and abroad.

I'm not sure if that includes the “black sites” but no matter. When Abu Ghraib II opens wide at the box office, we’ll simply trot out Karen Hughes to pretty up America’s image, along with Jerry Bruckheimer. Maybe the White House can hire Ann Coulter instead.

Or perhaps we can just take a page from the Sony playbook/station...most people don't know what a covert CIA gulag is, so why should they care about it?

Monday, November 14, 2005

To Err is Human, to Burr is Inhumane

As if Jesse Helms wasn’t enough. North Carolina Senator Richard Burr, has introduced legislation – S. 1873, the Biodefense and Pandemic Vaccine and Drug Development Act of 2005 - supposedly to “provide the Department of Health and Human Services with the additional authorities and resources necessary to partner with the private sector to rapidly develop drugs and vaccines to protect the United States from deliberate, accidental and natural incidents involving biological pathogens, such as avian influenza.”

While it sounds fantastic on the surface -- who wouldn’t want smart partnering and collaboration between the government, academia and pharmaceutical companies to develop innovative medical countermeasures? -- the small exemption Burr prescribes, but forgot to mention in his press release deals with freedom of information.

In an article, Secrecy Is Infectious: Bill Would Shield Biomedical Research, Washington Post’s Christopher Lee reports that, unlike any other federal agency, this Department of Health and Human Services spin-off would receive full exemption from the Freedom of Information Act. Burr’s office claims to “necessary to prevent information from falling into the wrong hands.”

First off, if Burr has access, it’s already in the wrong hands. While 40 year old FOIA allows agencies to withhold certain information for national security reasons, this exemption would shield the new agency from oversight with more teeth than that given to the CIA or NSA.

Before becoming President Bush’s chief domestic policy advisor in January, Claude Allen was a top aide at the Department of Health and Human Services (HHS) where he had been installed by none other than Karl Rove. (Someone who really is able to distinguish between secrecy in the name of national security and treasonous leaking for political gain.)

Allen was the driving force to replace science-based sex education with the failed policy of teaching that only abstinence prevents AIDS. Like Jesse Helms, for whom he once worked as a top aide, Allen saw to it that safe-sex materials were deleted from its Web sites and forced AIDS related agencies into adopting mandatory new rules stressing the failure of condoms in curtailing the spread of AIDS.

In an article, The Bush Theocracy, in LA Weekly in January, Doug Ireland wrote:

Notorious for his anti-abortion stance, at HHS Allen helped use its regulatory powers to turn Title 10 of the Public Services Act — which Bush père had championed — away from family planning and the promotion of condom use and into an abstinence-only program. In his Virginia years, Allen’s Christian-right extremism led him to endanger the health of children. Then Allen worked to defeat legislation that provided health insurance for children of the working poor, largely because the program covered abortion services for rape and incest victims under the age of 18. "When the law was ultimately enacted, Allen was faulted for not enrolling children quickly enough, and admitted that ‘abortion was the sticking point’ delaying the enrollment of children," as People for the American Way (and civil rights groups like the NAACP) pointed out last fall when they successfully opposed Bush’s nomination of Allen for a federal judgeship. "In this episode, Allen proved himself to be so adamantly opposed to reproductive rights that he found it preferable for poor children to go without health coverage than to risk an underage sexual-abuse victim having access to state-funded abortion services."

Oh yes, these are the people who deserve FOIA exemptions to cover up their hate-filled hypocrisy.

Secrecy in the name of national security or to perpetuate a radical, right wing agenda that shields the citizenry from such things as safe sex information that would save the lives of children, or policies that are responsible for deaths of genocidal proportions in Africa owing to failed polices based on religion instead of science?

Friday, November 04, 2005

Blogs, Logs and Demagogues

In an October 24, 2005 editorial, So who should you call a journalist?, Declan McCullagh of CNet explored the role of bloggers in journalism.

The Justice Department took a swipe at the leading shield proposal (H.R.3323/S.1419) during a Senate hearing last week, arguing that it would let criminals pose as bloggers.

"As drafted, the definition invites criminals to cloak their activities under the guise" of a journalist, warned Chuck Rosenberg, a U.S. Attorney in Texas. "The definition arguably could include any person who sets up an Internet 'blog.'" (It covers anyone who publishes an electronic "periodical.")

Sen. John Cornyn, a Texas Republican, seemed to be sympathetic to that argument. "The relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," Cornyn said.

Even the original sponsor of the Senate shield proposal, Richard Lugar, R-Ind., recently indicated that bloggers will "probably not" be deemed journalists.

It seems to me that the problem lies in defining “bloggers” as "journalists" much the same way that not all painters are necessarily artists, and not all typists are necessarily writers. The blogging phenomenon stems from a relationship between social networking and multimedia publishing technologies that includes a vast array of genres from incoherent meanderings to hard core muckraking.

When Armstrong Williams was outed for whoring his journalistic integrity by accepting payments to tout the Bush administration’s “No Child Left Behind” policy, he attempted to justify his actions by distinguishing between reporters and columnists, suggesting that someone like New York Times’ Maureen Dowd might not be held to the same journalistic standards as Judith Miller. (And as Dowd recently pointed out, after an embattled Miller blamed her misinformation on her sources, investigative reporting is not stenography.)

Defining bloggers as group automatically excluded from First Amendment protections afforded to wealthier organizations not only will "unreasonably elevate corporate-sponsored journalism over independent muckraking," as McCullagh points out, but would give a media organization like National Enquirer or Star greater First Amendment protection than individuals like Juan Cole ( or even sites, however misguided, like And who would dare suggest that an Arianna Huffington is less deserving of First Amendment protection than Judith Miller?

McCullagh quoted:

John Cornyn’s assertion that “the relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information," is laughable. As if brick, mortar and ink somehow engender responsibility. Tell that to Richard Jewell or the family of JonBenet Ramsey.

As for Chuck Rosenberg’s suggestion that “as drafted, the definition invites criminals to cloak their activities under the guise” of a journalist, the government has argued against the very transparency Rosenberg appears to advocate.

In United States v. ApolloMedia, the government first argued that although my former company, ApolloMedia, was a bona fide media company I was “not a representative of the ‘press’ but rather a participant in the investigatory process because its web site was used as the vehicle to deliver a threat” and that because of my demand to publish the information related to both the investigative process and gag order, the United States would offer to “allow Sealed Appellant I to ‘print, publish, disseminate or post on the Internet a redacted version of Magistrate Crone's June 16, 1999, Order.”

If anything, it seems that for those “bloggers” who tend to write about newsworthy current events or publish information they have gathered, there is a glut of information, and the evidence suggests most are inclined to reveal too much information rather than abuse any First Amendment protections currently available to “cloak” their activities.

Until there is legislation that specifically prohibits “bloggers” (once defined) from receiving full First Amendment protections available to any other individuals or entities, I believe people should operate on the assumption that they are equally protected.

To define and then penalize a group of citizens based on the technology they use to publish and the data presentation styles of their information seems not only ill advised, but constitutionally precarious.

Thursday, November 03, 2005

Krauthammer and Nails

Amazing that America was duped into believing that the Harriet Miers nomination was ever intended as a serious proposal.

It's little wonder she didn't bother answering anything seriously. The Administration played the game so well, the nomination of Samuel A. Alito Jr. has been met with far less opposition than had he been nominated from the outset.

Of course I'm not the only one thinking along these lines. The ultra-conservative columnist, Charles Krauthammer, in a column, Saving Face, on October 21, 2005 suggested exactly such an exit strategy. My only question, is whether such a strategy wasn't Plan A from Day One, but kept under wraps to allow conservatives to throw the predictable hissy fits they did. In fact if I wasn’t such a trusting individual, I would viciously suspect that Charles Krauthammer, like Armstrong Williams and Maggie Gallagher, was actually paid by the White House to opine in such an editorial so that no one would suspect the conservative drama wasn’t planned from the very beginning.

For a nominee who, unlike John Roberts, has practically no previous record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information -- ``policy documents'' and ``legal analysis'' -- from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.

Which creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.

Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive's prerogatives, the Senate expresses appreciation for this gracious acknowledgment of its needs and responsibilities, and the White House accepts her decision with the deepest regret and with gratitude for Miers' putting preservation of executive prerogative above personal ambition.

In the meantime, The Reporters Committee for Freedom of the Press has prepared a document that reflects the nominee’s First Amendment record, and despite the many troubling aspects of this nominee, his First Amendment decisions are not as horrific as expected.