The journalism world has been rightly outraged by the Justice Department dragging the Associated Press (and now a Fox News reporter) into one of its sprawling leak investigations. As we wrote last week, by obtaining the call records of twenty AP phone lines, “the Justice Department has struck a terrible blow against the freedom of the press and the ability of reporters to investigate and report the news.”
But there are several other important lessons that this scandal can teach us besides how important free and uninhibited newsgathering is to the public’s right to know.
1. Weak Privacy Laws That Doomed AP Affect Everyone
The AP detailed in its letter to the Justice Department how its privacy was grossly invaded even though the government accessed only the call records of its reporters and not the content of their conversations. We completely agree. Unfortunately, this isn’t just a problem in the AP investigation. Law enforcement agencies routinely demand and receive this information about ordinary Americans over long periods of time without any court involvement whatsoever, much less a full warrant.
For example, according to information released by the phone companies to Rep. Ed Markey, Sprint alone received a staggering 500,000 subpoenas for call records data last year.
The DOJ’s decision to dive into these call records shows the growing need to update our privacy laws to eliminate the outmoded Third Party Doctrine—which holds that anything you give to a service provider, or that a service provider collects as part of providing you a service—can retain no reasonable expectation of privacy. In an era where email is stored by our providers, cellphone companies keep records that track our location and cloud services hold our documents, it’s long past time to bring our interpretation of the Fourth Amendment and statutory electronic privacy laws in compliance with the 21st Century.
In response to the AP scandal, a bipartisan coalition in Congress just introduced a bill to partially fix this problem called The Telephone Records Protection Act. The bill would require the Justice Department to get a judge’s approval before seeking these records. At EFF, we think the government should have to go even further than a court order: a judicial warrant showing the kind of probable cause required by the Fourth Amendment should be the standard. But this bill is certainly an improvement over administrative subpoenas, which don’t need a sign-off from a judge at all and allow the Executive branch to seek information without any external check.
2. Phone Companies May Give Up Your Information Without Telling You
As the New York Times reported, the AP is still examining if and when any telephone companies tried to push back on the overbroad requests for its call records. “But at least two of the journalists’ personal cellphone records were provided to the government by Verizon Wireless without any attempt to obtain permission to tell them so the reporters could ask a court to quash the subpoena,” the Times said. And it also seems clear that the AP itself wasn’t given notice before their phone company turned over the records.
In EFF’s 2013 “Who Has Your Back” report, which tracks several ways in which communications companies can help protect user privacy, we give a star for promising to notify users about government demands for data whenever whenever the company is not legally prevented from doing so. Notably, Verizon does not have such a notification policy and did not receive a star. In fact, Verizon was the only company to receive zero stars.
This isn’t a small problem or just a problem for journalists. Verizon received 260,000 similar subpoenas for call records last year. The government requests this information with regularity, and given the phone companies control the data, communications company policies are all that stand between you and governmental overreach.
Users should demand that their communications companies notify them when the government comes seeking information, unless they are legally barred by a court order.
3. Government often Overstates National Security Claims, Overclassifies Information
We’ve written many times about the many ways “national security” has been invoked—and exaggerated—in order to cover up government embarrassment or wrongdoing, or to assert powers that would normally not be granted under the Constitution. The government routinely overclassifies information that should never be secret, according to reports commissioned by the White House itself.
The most glaring example for EFF is our lawsuit over the NSA warrantless wiretapping program, where the government won’t admit or deny that the program even exists, citing the danger to national security, despite thousands of pages of public evidence. The government has argued the same thing in cases about torture and the CIA drone program where, many times, the same information that they claim is secret is on the front pages of the nation’s newspapers.
In the AP’s case, while Attorney General Holder says this leak put “lives at risk,” John Brennan said the opposite around the time of the story (“Brennan said the plot was never a threat to the U.S. public or air safety,” reported Reuters). The AP also held its story for six days until the CIA told them it was safe to publish and the White House had a news conference planned the day after the story to announce the successful counterterrorism operation.
As the late Supreme Court Justice Huge Black once said, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
4. There’s Not Much Recourse For Prosecutorial Misconduct
In this case, just like the case of Aaron Swartz, there has been widespread criticism that the Justice Department has abused its authority and aggressively pursued parties in an unprofessional manner. As we detailed last week, it seems the Justice Department didn’t follow its own guidelines when issuing subpoenas about[?] the reporters, or at least went to the very edge of its own guidelines.
Just like in the Swartz case, the specific prosecutor has a history of over-aggressive prosecutions (even being accused of overzealous prosecution by Eric Holder himself when he was in private practice). Yet when Congress asked Holder at a hearing about the allegations, just like in the Swartz case, he did not admit to any wrongdoing, and was able to deflect questions about his department’s handling of the case. Unfortunately, there is not much recourse for meaningful remedy for the public in these situations, and this case is just the latest example.
5. Journalists Need to be Pro-Active in Protecting Their Digital Security
In an age where warrantless surveillance is skyrocketing and governments potentially have access to an astonishing amount of information, journalists must learn to proactively protect both themselves and their sources.
The Committee to Protect Journalists Journalist Security Guide is an excellent place to start. It addresses concerns faced by journalists working inside the United States and internationally.
Wired published an op-ed last week about the care one needs to take from the source’s end if one wishes to send information to the press undetected. Much of the advice is applicable to reporters talking to sources as well. Additionally, the New Yorker has just released a promising—but un-tested—anonymous leak submission system, coded by Aaron Swartz before he tragically died in January. In certain circumstances physical mail remains the safest option.
Overall, the final lesson is that journalists, and sources, need to take security seriously. Trusting that the government won’t come after you because you’re engaged in journalism, serving the public interest, or helping reveal wrongdoing is plainly not sufficient.
The discussion around people’s banished right to unlock their own cellphones has been framed as an unexpected and unanticipated effect of the copyright monopoly. To the contrary, it shows the heart of the monopoly’s philosophy: killing ownership as a concept.
There is a weak copyright monopoly reform bill happening in the United States Congress at the moment.
This bill is not about the copyright monopoly at all, and at the same time, about everything that the monopoly actually is. It is the Unlocking Technology Act of 2013.
The bill, which was presented to the U.S. Congress three days ago, makes it legal to unlock devices such as phones that you own, and do what you like with them. Let’s take that again, because it is jaw-dropping: the bill reforms the copyright monopoly to make it legal to tinker with objects that you own. It has nothing to do with BitTorrent, MKVs, streaming, or what we normally associate with the activity of sharing culture outside of the copyright monopoly distributions.
The bill is about your ability to take your phone to a different wireless operator. Your own phone, that you bought and paid for. Your legal ability to bring your own property wherever you like, without breaching criminal law and risking jail. How on Odin’s green Earth did this come to have to do with the copyright monopoly?
Few contemporary discussions put the spotlight like this one on how the copyright monopoly is not about rewarding artists, but is a political war on property – on our ability to own the things we paid for. (I won’t say “bought”, as that implies we actually own them.) The copyright monopoly is dividing the population into a corporate class who gets to control what objects may be used for what purpose, and a subservient consumer class that don’t get to buy or own anything – they just get to think they own things that can only be used in a predefined way, for a steep, monopolized, fixed price, or risk having the police sent after them.
This is not a free market. This is the opposite of a free market. The copyright monopoly stands in opposition to a free market, and in opposite to property as a concept.
Some people insist on deceptively calling the copyright monopoly “property”, which is categorical nonsense every bit of the way. Two people can’t both own an object in full; this is part of the very definition of property. Obviously, the idea that you could own the jacket you’re wearing while I could own its color is both asinine and nonsensical, just like the idea that you can own a CD but I can own the laser-etched pattern of grooves carved into it.
Yet, the copyright monopoly maximalists insist on calling their monopoly “property” in continued and deliberate deception. When you press them on how this goes counter to every known definition of property, they usually fall back to a stupid statement along the lines of “property is whatever we define it to be”, which avoids basic statements of fact on the nature of property, and goes to reveal the true intent – redefining property to something that creates two new classes in society: the corporate masters who own property, and the citizen serfs who get to use things they pay for in ways that are strictly defined and constrained.
To illustrate the absurdity of this, imagine a carpenter that had the legal right to send you to jail if you used his chairs in ways he disapproved of, after your having bought those chairs.
This is what the copyright monopoly was always about. The phone-unlocking issue is not an oddity or an outlier; it lies at the very heart of the monopoly’s philosophy. The copyright monopoly was always about control over other people’s property, and always about preventing creativity and innovation that could threaten the incumbents.
The copyright monopoly hurts creativity, hurts our economy, hurts our entrepreneurs – and most importantly, it is an affront to the most foundational concepts in society, such as the right to tinker with your own property. It needs to be questioned, dismantled, and abolished.
Last month, Sen. Mark Udall and a handful of other privacy-focused politicians persuaded the IRS to promise to cease warrantless searches of Americans’ private correspondence.
Now Udall, a Colorado Democrat, is taking aim at the Justice Department, which has claimed the right to conduct warrantless searches of Americans’ e-mail, Facebook chats, and other private communications.
“I am extremely concerned that the Justice Department and FBI are justifying warrantless searches of Americans’ electronic communications based on a loophole in an outdated law that the U.S. Court of Appeals for the 6th Circuit ruled was unconstitutional,” Udall said in a statement sent to CNET Thursday.
Udall’s statement cites a CNET article yesterday that was the first to disclose the Justice Department and the FBI’s electronic search policies. The article was based on internal government documents obtained by the American Civil Liberties Union.
The senator’s statement urges Congress to move quickly to update the 1986 Electronic Communications Privacy Act — enacted during an era of dialup modems and the black and white Macintosh Plus — that currently does not require search warrants for all e-mail messages. The 6th Circuit ruled in 2010, however, that the privacy protections enshrined in the Fourth Amendment require police to obtain search warrants signed by a judge first.
Megaupload founder Kim Dotcom has been announcing it for months on his website and a white paper released today is the first big step towards that goal.
Titled “The United States vs You (and Kim Dotcom)” and written by Megaupload lawyers Ira Rothken and Robert Amsterdam, the paper accuses the Obama administration of being a pawn of big corporations. It further describes in detail how the authorities obliterated Megaupload on flaky legal grounds.
“The message is clear. The White House is for sale. Due process and the rule of law have little value to the current administration. More and more of our rights are eroding away to protect the interests of large corporations and their billionaire shareholders,” Dotcom tells TorrentFreak.
According to Dotcom his case is just one example of how corporate interests threaten people’s rights and freedom on the Internet in general.
“Silicon Valley has been turned into Surveillance Valley. Kids with keyboards are the new terrorists. Copyright is now a matter of national security. This is all very un-American. Read the White Paper and wake up.”
The 38-page white paper starts with a bang:
“The criminal prosecution of Megaupload and Kim Dotcom is purportedly the ‘largest copyright case in history,’ involving tens of millions of users around the world, and yet it is founded on highly dubious legal principles and apparently propelled by the White House’s desire to mollify the motion picture industry in exchange for campaign contributions and political support,” the white paper begins.
One of the main complaints against the legal process is that under U.S. law Megaupload and its employees can’t be held criminally responsible for copyright infringements committed by the site’s users.
“The prosecution seeks to hold Megaupload and its executives criminally responsible for alleged infringement by the company’s third-party cloud storage users. The problem with the theory, however, is that secondary copyright infringement is not – nor has it ever been – a crime in the United States.”
“The federal courts lack any power to criminalize secondary copyright infringement; the U.S. Congress alone has such authority, and it has not done so. As such, the Megaupload prosecution is not only baseless, it is unprecedented,” Rothken and Amsterdam write.
The paper continues to give a detailed overview of legal jurisprudence in Megaupload’s favor. Among other things, the lawyers note that Megaupload granted very broad DMCA takedown powers to copyright holders, who could remove any file from the cloud hosting service without oversight.
Most of the legal arguments laid out in the white paper have been highlighted previously. What is new, however, is the legal team’s frontal attack on the Obama administration. The suggestion is, that the White House has been corrupted by corporate money and that the assault on Megaupload was a payoff.
“The degree to which the Copyright Lobby, and the MPAA specifically, have managed to instrumentalize the current Administration to take down a foreign corporation and its executives is, quite literally, un-American,” the lawyers write.
Corrupted by sizable election contributions from corporate interest groups, the United States no longer stands for principled standards and the rule of law, the lawyers argue.
“Those values appear to have fallen by the wayside under this White House, which seems content to violate the due process rights of criminal defendants, mislead the courts, and advance baseless legal theories so long as its fund-raising remains uninterrupted.”
The Truth Will Come Out
Megaupload’s lawyers see the MPAA as the driving force behind the criminal prosecution of the cloud hosting site and its employees. According to them, it is no coincidence that the Hollywood group is headed by former Senator Chris Dodd, one of Vice President Joe Biden’s best friends.
“As the new Chairman and CEO of the MPAA, Chris Dodd improperly leveraged his friendship with Joe Biden to achieve the MPAA’s objectives. Former Senator Dodd’s relationship with the Vice President– who comes off manipulated, a cheerfully credulous facilitator – together with the Obama Administration’s ravenous hunger for campaign contributions, has given the MPAA absolute control over how the U.S. Department of Justice plays the game in enforcing copyright law,” they write.
Continuing on the corruption theme, Rothken and Amsterdam go on to describe MPAA’s influence in Washington as “State Capture.”
“The MPAA’s overt use of campaign contributions to sway the U.S. government into engaging in what amounts to unlawful action against Megaupload reflects a form of State Capture, a term coined by the World Bank to describe a brand of corruption characterized by the ability of a relatively small number of private interests to shape the official rules of the game through direct payments or other forms of financial influence.”
One cited example of how political funding was used to influence decisions was a January 2012 threat from the MPAA’s Chris Dodd. He stated that Hollywood would stop donating to politicians who fail to protect their interests.
“By threatening to revoke vital political and monetary support from the Administration at a crucial moment, the MPAA has exercised de facto control over key levers of executive power in Washington – law enforcement, prosecutors, trade negotiators – and is using those instruments of state power to further the financial interests of its members in Hollywood.”
The white paper further gives numerous examples of how Megaupload’s lawyers believe the authorities abused their power to further the interests of the copyright lobby. The overall conclusion is that people’s rights and freedoms are trumped to secure political donations, which are clear signs of contract prosecution.
“The U.S. government’s attack against Megaupload bears all the hallmarks of a contract prosecution: a case resting on erroneous theories of criminal law, littered with due process violations and prosecutorial abuses, carried out for the benefit of a select few in exchange for their political and financial support,” the lawyers write.
“In the name of eliminating copyright infringement, Hollywood has exerted a corrupting influence in Washington, leading us all down a slippery slope that not only threatens innovation and Internet freedom, but also has profound implications for constitutional principles of free speech, privacy and due process.”
Finally, the white paper suggests that this is not an isolated incident. It warns the public that these corrupt forces can quash anything that stands in the way of the private interests of those who make significant campaign contributions.
“Megaupload and Kim Dotcom are today’s targets, but the crosshairs can just as easily be trained on anybody who dares challenge or inconvenience a special interest that holds sway in Washington, and the current Administration – with its notoriously insatiable appetite for campaign contributions – seems all too willing to cooperate.”
The above points are just samples from the white paper, which is certainly worth reading in its entirety. There is no doubt that the Megaupload legal team have just planted a virtual bomb under the Megaupload prosecution. It will be interesting to see how this is received, and whether we will hear a response from the accused.