New York Times editorial board praises efforts of Bernie Sanders

He exhorted Americans to use the power of democracy to force change — in contrast to Donald Trump, the likely Republican nominee, who also promised to elevate the nation’s disaffected but did it mainly by scapegoating the weak.

Mr. Sanders forced Hillary Clinton to pay attention to much of this message. In order to appeal to his followers in the months to come, she will be challenged to generate the same passion, especially among the young, who at rally after rally sat through an hour’s worth of economic lecturing from a wild-haired man they found to be honest and authentic. It may have been the same lecture over and over again, but die-hard supporters trailed him like fans of the Grateful Dead, attentively listening for occasional improvisations in his shouted assaults on the status quo. On Thursday night, at what may prove to be Mr. Sanders’s final rally, some 3,000 people turned up in Washington’s R.F.K. Stadium to cheer his commitment to them.

True to his pledge, Mr. Sanders shunned big money, often beating the monthly totals of Mrs. Clinton — much admired by more than a few billionaires — by raking in tens of millions, 27 bucks at a time. In this age of unbridled campaign spending, that alone is a signal achievement, and may it prove a transformative one.

You can access the entire editorial here.

I still think that the NYT was in the bag for Clinton, but I hope that Sanders can pressure some Democratic delegate to support much of his efforts to protect portions of his programs.

Better late than never, I suppose

The New York Times Executive Editor, Dean Baquet, announced yesterday that the paper would begin to characterize the CIA’s brutal treatment of prisoners as torture. For years, despite the fact that we new torture was occurring the New York Times decided to use Orwellian double speak and refused to call a spade a spade.

. . . the Justice Department, under both the Bush and Obama administrations, has made clear that it will not prosecute in connection with the interrogation program. The result is that today, the debate is focused less on whether the methods violated a statute or treaty provision and more on whether they worked – that is, whether they generated useful information that the government could not otherwise have obtained from prisoners. In that context, the disputed legal meaning of the word “torture” is secondary to the common meaning: the intentional infliction of pain to make someone talk.

Given those changes, reporters urged that The Times recalibrate its language. I agreed. So from now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information.

Despite the outrageous delay and the fact that everyone knew years ago that full-on torture was being used by the United States, it is probably a good thing that the true characterization of mistreatment of prisoners now will be used.

Michael Kinsley responds to the NYT Public Editor

Yesterday, Margaret Sullivan, the New York Times‘s public editor, published a strong attack on Michael Kinsley‘s “book review” of Glenn Greenwald‘s book covering the Snowden affair called No Place to Hide. Kinsley asked for an opportunity respond, and it is published on the public editor pages today.

One of Kinsley’s misleading statements in his rebuttal is the following:

The Supreme Court has repeatedly turned down opportunities to create a “journalist’s privilege.” Sullivan may not like this. Heck, I don’t especially like it. But it’s a fact.

This is not a fact; it is in fact false. The Supreme Court has declined to create a reporter’s privilege in one case only, not repeatedly. Via Constitutional Law Reporter:

The Supreme Court has only considered the existence of a reporters’ privilege once during its storied history, and it ultimately concluded that the First Amendment does not afford such protections. Yet, Branzburg v. Hayes is cited today as establishing a test for determining when the reporters’ privilege can be used to prevent confidential sources and information from being compelled.

* * *

The majority, however, refused to close the door completely. It noted that “official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources” could be unconstitutional.

Justice Lewis F. Powell Jr. went even further in his concurring opinion. In addition to making it clear that “the Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources,” he also stated that “the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”

Justice Powell then went on to describe a balancing test that is still used in most federal courts when determining the existence of the reporters’ privilege. “[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions,” Justice Powell explained.

However, when one looks at the federal Courts of Appeal, the result is stunningly different. Via Wikipedia:

Reporter’s privilege in the United States (or sometimes journalist’s privilege), is a “reporter’s protection under constitutional or statutory law, from being compelled to testify about confidential information or sources.”[1] It may be described in the US as the qualified (limited) First Amendment right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery[2]

The FirstSecondThirdFourthFifthEighthNinthTenthEleventh, and D.C. Circuits have all held that a qualified reporter’s privilege exists. Furthermore, forty states and the District of Columbia have enacted shield laws protecting journalists’ anonymous sources.[3]

So until the Supreme Court decides to hear a case involving the split in the opinions of the various circuit courts, there is ample existing law that there is a reporter’s privilege.

Nonetheless, my favorite declaration in Kinsely’s attempt to rehabilitate himself is the following:

Like most people except Glenn Greenwald, I think the issue is complicated and I have other things to do.

If Kinsley has other things to do, by all means move on and don’t let the door hit you in the ass on the way out. Apparently he was unable, though, to resist his continuing ad hominem attacks on Glenn Greenwald and now Margaret Sullivan.

NY Times’ Public Editor responds to Kinsley’s “review” of Greenwald’s book

I have previously written about Michael Kinsley’s “book review” of Glenn Greenwald‘s book, No Place to Hide. Following the publication of the Kinsley review, I wrote to the Public Editor of the New York Times raising my concerns regarding both Kinsley’s overly personal attack on Glenn Greenwald and Kinsley’s stated position that journalists cannot decide which governmental secrets can be revealed to the public, and that only the government can make such decisions.

Now Margaret Sullivan, the Public Editor of the New York Times has published her take on the matter. Excerpt:

Here’s my take: Book reviews are opinion pieces and — thanks to the principles of the First Amendment — Mr. Kinsley is certainly entitled to freely air his views. But there’s a lot about this piece that is unworthy of the Book Review’s high standards, the sneering tone about Mr. Greenwald, for example; he is called a “go-between” instead of a journalist and is described as a “self-righteous sourpuss.” (I’ve never met Mr. Greenwald, though I’ve written about his work, as Mr. Kinsley notes.)

But worse, Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the pressin America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well. What if his views were taken to their logical conclusion? Picture Daniel Ellsberg and perhaps the Times reporter Neil Sheehan in jail; and think of all that Americans would still be in the dark about — from the C.I.A.’s black sites to the abuses of the Vietnam War to the conditions at the Walter Reed Army Medical Center to the widespread spying on ordinary Americans.

By the way, it turns out that I am quoted in the article.

Kinsley is simply (and totally) wrong

There is a great essay by Ted Rall in Pando Daily. It is a superb take-down of Michael Kinsley‘s book review of No Place to Hide, by Glenn Greenwald. Rall characterizes Kinsley’s piece as “the worst thing the New York Times Book Review has ever run.”

Here is an excerpt:

Who should we trust more, Glenn Greenwald or the U.S. government?

Sourpuss or no, Glenn Greenwald has never said there were WMDs in another country so he could invade it. He doesn’t extraordinarily rendition, or torture, or maintain concentration camps. He doesn’t command aerial armadas of killer robot planes to blow up innocent people without so much as a court warrant. Greenwald doesn’t listen to my phone calls, read my email or intercept my new computer in transit in order to install malware.

If I were Michael Kinsley, I wouldn’t trust myself.

Michael Kinsley, the New York Times and reporters’ privilege

iuA couple of days ago, Michael Kinsley, writing in the New York Times Book Review, reviewed Glenn Greenwald‘s new book called No Place to Hide. The book details the massive surveillance state created by the government in the aftermath of the 9/11 attack.  Kinsley’s basic approach is to deny that there is any legal principal that creates a “reporters’ privilege” to publish any governmental secrets and that, therefore, Glenn Greenwald is essentially a criminal for publishing any of the classified documents provided to him by Edward Snowden.

As the news media struggles to expose government secrets and the government struggles to keep them secret, there is no invisible hand to assure that the right balance is struck. So what do we do about leaks of government information? Lock up the perpetrators or give them the Pulitzer Prize? (The Pulitzer people chose the second option.) This is not a straightforward or easy question. But I can’t see how we can have a policy that authorizes newspapers and reporters to chase down and publish any national security leaks they can find. This isn’t Easter and these are not eggs.

* * *

The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.

He is beyond incorrect on that position. Muzzling the press from reporting on government secrets (and wrongdoing) leads to tyranny and the kind of massive abuse that we now know is occurring at the NSA, the FBI and other agencies. And it is certainly stunning that the New York Times, which published the Pentagon Papers and won the right to publish at the Supreme Court, would tolerate this sort of obfuscation and toadying to political insiders. And, although Kinsley does not acknowledge this in his “review,” the New York Times itself published several articles based on the Snowden documents. And, in fact, there is a “reporter’s privilege,” albeit limited in certain cases, based on the First Amendment, in many jurisdictions in the United States. Prior governmental restraint of free speech is not generally legal in this country,

Now, Glenn Greenwald has responded to the article. Here are the concluding two paragraphs:

So let’s recap: The New York Times chose someone to review my book about the Snowden leaks who has a record of suggesting that journalists may be committing crimes when publishing information against the government’s wishes. That journalist then proceeded to strongly suggest that my prosecution could be warranted. Other prominent journalists —including the one who hosts Meet the Press–then heralded that review without noting the slightest objection to Kinsley’s argument.

Do I need to continue to participate in the debate over whether many U.S. journalists are pitifully obeisant to the U.S. government? Did they not just resolve that debate for me? What better evidence can that argument find than multiple influential American journalists standing up and cheering while a fellow journalist is given space in The New York Times to argue that those who publish information against the government’s wishes are not only acting immorally but criminally?

Finally, for a much better take-down of Kinsley that what I wrote above, check out Barry Eisler writing in TechDirt.As Eisler notes, George Orwell said it best: Journalism is printing what someone else does not want printed: everything else is public relations.

Frontline reports on the NSA bulk metadata collection program

The PBS series Frontline broadcast part 1 of a two part investigation on the creation and maintenance of the massive domestic surveillance programs of the NSA implemented after the 9/11 attacks. The documentary includes input from many of the participants who created the program and those who tried to oppose it. It is a fascinating portrait and all Americans should take the time to watch both parts. Part two will be shown on May 20 and will focus on the complicity of tech companies and communication carriers in carrying out the abuse.

You can watch the broadcast on the web here. And you can also stream it through an Apple TV using the PBS app on the device.

Spy agencies adept at collecting information from mobile apps

Another disclosure about NSA and GCHQ spying on citizens was published today by the New York Times and it highlight elaborate programs seeking to collect information from mobile apps.

Excerpt:

Angry Birds
Angry Birds (Photo credit: Wikipedia)

When a smartphone user opens Angry Birds, the popular game application, and starts slinging birds at chortling green pigs, spy agencies have plotted how to lurk in the background to snatch data revealing the player’s location, age, sex and other personal information, according to secret British intelligence documents.

In their globe-spanning surveillance for terrorism suspects and other targets, the National Security Agency and its British counterpart have been trying to exploit a basic byproduct of modern telecommunications: With each new generation of mobile phone technology, ever greater amounts of personal data pour onto networks where spies can pick it up.

According to dozens of previously undisclosed classified documents, among the most valuable of those unintended intelligence tools are so-called leaky apps that spew everything from users’ smartphone identification codes to where they have been that day.

social-convergence-p10-normal

The N.S.A. and Britain’s Government Communications Headquarters were working together on how to collect and store data from dozens of smartphone apps by 2007, according to the documents, provided by Edward J. Snowden, the former N.S.A. contractor. Since then, the agencies have traded recipes for grabbing location and planning data when a target uses Google Maps, and for vacuuming up address books, buddy lists, phone logs and the geographic data embedded in photos when someone sends a post to the mobile versions of Facebook, Flickr, LinkedIn, Twitter and other services.

The President has stated, on more than one occasion, most recently in last week’s issue of The New Yorker, that there is “no domestic spying program.” Here is the full quote:

[Obama says that the coverage of Snowden leaks paints] a picture of a rogue agency out there running around and breaking a whole bunch of laws and engaging in a ‘domestic spying program’ that isn’t accurate. But what that does is it synchs up with a public imagination that sees Big Brother looming everywhere.” How can he square that disclaimer with the details of the programs referenced above.

So it seems pretty clear that Obama is simply and repeatedly lying to the American people. How long can this be tolerated?

End the NSA’s telephone metadata program now

The Privacy and Civil Liberties Oversight Board yesterday released their report on the NSA’s telephone metadata collection program (i.e., collect it all). Given the report’s conclusion that the program is both ineffective and illegal, it is now past time to bring this program to a halt.

Today’s New York Times editorial on the subject includes the following:

Once again, a thorough and independent analysis of the government’s dragnet surveillance of Americans’ phone records has found the bulk data collection to be illegal and probably unconstitutional. Just as troubling, the program was found to be virtually useless at stopping terrorism, raising the obvious question: Why does President Obama insist on continuing a costly, legally dubious program when his own appointees repeatedly find that it doesn’t work?

In a 238-page report issued Thursday afternoon, the Privacy and Civil Liberties Oversight Board, a five-member independent agency, called on the White House to end the phone-data collection program, for both constitutional and practical reasons. The board’s report follows a Dec. 16 ruling by Federal District Judge Richard Leon that the program was “almost certainly” unconstitutional and that the government had not identified “a single instance” in which it “actually stopped an imminent attack.”

Two days later, a panel of legal and intelligence experts convened by Mr. Obama after the disclosures by Edward Snowden echoed those conclusions in its own comprehensive report, which said the data sweep “was not essential to preventing attacks” and called for its end.

The growing agreement among those who have studied the program closely makes it imperative that the administration, along with the program’s defenders in Congress, explain why such intrusive mass surveillance is necessary at all. If Mr. Obama knows something that  contradicts what he has now been told by two panels, a federal judge and
multiple members of Congress, he should tell the American people now. Otherwise, he is in essence asking for their blind faith, which is precisely what he warned against during his speech last week on the future of government surveillance.

“Given the unique power of the state,” Mr. Obama said, “it is not enough for leaders to say: trust us, we won’t abuse the data we collect. For history has too many examples when that trust has been breached.”

New York Times calls for Snowden clemency

Image representing Edward Snowden as depicted ...
Image by None via CrunchBase

Today, the New York Times editorial board has called for clemency for Edward Snowden. The board lays out the case in a powerful fashion.

Excerpt:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

* * *

Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

  • The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.
  • The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.
  • The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.
  • His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)
  • The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.
  • A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The Guardian has also issued an editorial calling for a pardon for Snowden.

A pardon or clemency for Snowden would be a great beginning of 2014.

Surveillance state quote of the day

6. The surveillance state. Despite what Time magazine decided, the person of the year clearly was the whistleblower Edward J. Snowden, and the story of the year was the far-reaching, secretive, everyday surveillance of Americans and many others by the United States government. (Not every news organization shares my view; ABC News’s Monday night look-back at 2013 managed to feature Batkid, at some length, but Snowden not at all.) The continued persecution of leakers and the press is a related issue of great importance, and the federal government’s misguided insistence on pursuing Times reporter James Risen is just one part of that, an affront to the First Amendment.

 * * *

Perhaps the challenge most important to the democracy in 2014 is to push back harder, to put the weight of The Times behind that push through every means possible: the legal battles as they arise or continue, the bully pulpit of editorials, the revealing light of aggressive news reporting.

Margaret Sullivan, Public Editor at the New York Times.

Surveillance state quote of the day

Has the National Security Agency’s mass collection of Americans’ phone records actually helped to prevent terrorist attacks?

No, according to the 300-page report issued this month by a panel of legal and intelligence experts appointed by President Obama.

Yet in a ruling issued on Friday, Judge William Pauley III of the Federal District Court in Manhattan came to the opposite conclusion. “The effectiveness of bulk telephony metadata collection cannot be seriously disputed,” Judge Pauley wrote in a deeply troubling decision dismissing a lawsuit by the American Civil Liberties Union that challenged the constitutionality of the N.S.A.’s bulk data collection program.

The ruling, which repeatedly defers to the government’s benign characterization of its own surveillance programs, demonstrates once more the importance of fixing the law at its source, rather than waiting for further interpretations by higher courts.

New York Times editorial.

Surveillance state quote of the day

By the time President Obama gave his news conference on Friday, there was really only one course to take on surveillance policy from an ethical, moral, constitutional and even political point of view. And that was to embrace the recommendations of his handpicked panel on government spying — and bills pending in Congress — to end the obvious excesses. He could have started by suspending the constitutionally questionable (and evidently pointless) collection of data on every phone call and email that Americans make.

He did not do any of that.

* * *

In other words, he never intended to make the changes that his panel, many lawmakers and others, including this page, have advocated to correct the flaws in the government’s surveillance policy had they not been revealed by Edward Snowden’s leaks.

And that is why any actions that Mr. Obama may announce next month would certainly not be adequate. Congress has to rewrite the relevant passage in the Patriot Act that George W. Bush and then Mr. Obama claimed — in secret — as the justification for the data vacuuming.

New York Times editorial published December 20, 2013

Advisory intelligence panel report

The New York Times has additional information on the recommendations of Obama’s intelligence panel. Obama has already stated that he would not accept one of the recommendations (that is, the recommendation that the NSA should have a civilian leader). However, some of the additional recommendations actually sound as if they would go a long way to curb the NSA. For example, the panel recommends that the telephone metadata program should be changed to block the NSA from collecting and holding the metadata. Rather, either the phone companies or a private agency should hold the data, and the NSA would be allowed access only after identifying a specific person and securing a court order.

However, the report ignores other problems, like the massive collection of emails, chats and other online communications. And in the case of the metadata program, it seems that the massive collection of data will continue, albeit by private entities. Why that is necessary is not made clear. If access to the data requires a court order, then why not leave the management of the metadata to the telecommunication companies would would deliver targeted information in response to the required court order.

In addition, the Times writes a powerful editorial today entitled “Turn off the data vacuum.” Excerpt:

The 300-plus-page report was written by a five-member advisory panel of intelligence and legal experts that was commissioned by the president himself and made 46 recommendations for reform. The recommendations demonstrate how far afield the National Security Agency has wandered in its zeal to vacuum up the phone and Internet data of virtually every American, not to mention world leaders and other non-American citizens.

They also show the lack of regard for the Constitution that has led those efforts, and the virtual absence of supervision and restraint by Mr. Obama and his predecessor, President George W. Bush.

The most far-reaching recommendations are also the most common sense. For example, the report calls for legislation requiring the government to meet a higher standard before it can order a company to turn over private customer records. As it stands, the law puts “extremely broad discretion in the hands of government officials,” the report said.

It also calls for an end to the government’s mass storage of those records, recommending that they be kept by the companies themselves or a private third party in order to prevent government abuse. Otherwise, the report warns, “high-level government officials will decide that this massive database of extraordinarily sensitive private information is there for the plucking.”

“Americans must never make the mistake of wholly ‘trusting’ our public officials,” the authors write.

I think this tweet summarizes an important point:

You can read the full text of the report here.

Uninformed NY Times article

Catherine Rampell, writing in the New York Times Magazine, complains that Apple specifically limits the life of its devices, using some form of planned obsolescence.  She claims that the batteries get weaker over time and that it is possible that Apple specifically designs the batteries to fail in a short time. She also claims that new software from Apple adversely affects the performance of older devices, also prompting a need to buy a new device.

At first, I thought it was my imagination. Around the time the iPhone 5S and 5C were released, in September, I noticed that my sad old iPhone 4 was becoming a lot more sluggish. The battery was starting to run down much faster, too. But the same thing seemed to be happening to a lot of people who, like me, swear by their Apple products. When I called tech analysts, they said that the new operating system (iOS 7) being pushed out to existing users was making older models unbearably slow. Apple phone batteries, which have a finite number of charges in them to begin with, were drained by the new software. So I could pay Apple $79 to replace the battery, or perhaps spend 20 bucks more for an iPhone 5C. It seemed like Apple was sending me a not-so-subtle message to upgrade.

* * *

This time around, that’s less true. The iPhone 5S and 5C offer fewer quantum improvements. Consumers are more likely to want their old phones to continue working at peak condition in perpetuity, and to feel cheated when they don’t.

Ms. Rampell clearly knows nothing about technology or the physics of battery life. All batteries have a limited number of recharge cycles; no batteries have a perpetual life. And Apple will replace the battery in an old iPhone for $79 (which is about $25 per year for the three year normal life of these products).

Apple goes to great lengths in designing both hardware and software to use as little battery power as current technology allows. And she also doesn’t seem to understand that new software from Apple is not required to be installed. New software, with new functions, always requires appropriate hardware to perform well. This is true in computers generally.

Finally, hardware improves all the time and better performance (and longer battery life) is a normal part of the technology development process.

Here is Rampell attempting to defend her bizarre theories: