ARTS & FARCES internet

The Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act (SECURE IT)—first introduced in 2012 by US Representative Mary Bono Mack (R-California) and reintroduced in 2013 by US Representative Marsha Blackburn (R-Tennessee) includes a very disturbing technical amendment that would create a new exemption to the Freedom of Information Act (FOIA).

Section 107 of the technical amendments would allow the government to withhold information shared with the cybersecurity centers created by the proposed legislation.

Additionally, language in the proposed legislation appears to define any information shared with the cybersecurity centers as “voluntarily shared information” and therefore exempt from FOIA. The language specifically preempts any state, local, or tribal law from requiring FOIA disclosure by actually creating a new FOIA (b)(3) exemption for the shared information.

The proposed legislation’s language is consistent with similar proposals such as the Cyber Intelligence Sharing and Protection Act (CISPA). The intent is to encourage corporations to share information with the government by giving them overly broad protections regarding the public release of the information they provide. What few realize is that really, truly sensitive corporate information already enjoys FOIA exemption under one or more of the existing nine FOIA exemptions:

1. Exemption 1: Information that is classified to protect national security and classified under an Executive Order.
2. Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
3. Exemption 3: Information that is prohibited from disclosure by another federal law.
4. Exemption 4: Information regarding business trade secrets or other confidential commercial or financial information.
5. Exemption 5: Information that concerns communications within or between agencies which are protected by legal privilege (e.g., attorney-work product, attorney-client, deliberative process).
6. Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
7. Exemption 7: Law enforcement information if one of the following harms would occur:
• 7(A). Could reasonably be expected to interfere with enforcement proceedings.
• 7(B). Would deprive a person of a right to a fair trial.
• 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy.
• 7(D). Could reasonably be expected to disclose the identity of a confidential source.
• 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions.
• 7(F). Could reasonably be expected to endanger the life or physical safety of any individual.
8. Exemption 8: Information that concerns the supervision of financial institutions.
9. Exemption 9: Geological information on wells.

Because the various FOIA exemptions are adequate, any move to broaden the existing exemptions or add new ones without considering the public interest is simply bad public policy.

In late 2010, MasterCard, PayPal, and Visa all announced that they would unilaterally stop accepting donation transactions for WikiLeaks, the group that has released scores of secret US government documents. In November 2010, WikiLeaks had released a collection of US State Department cables. This information was published by the New York Times, the Guardian, and other traditional media outlets. That drew the ire of several government officials, US Senator Joe Lieberman (I-Connecticut), and US Representative Peter King (R-New York) who wrote a letter to US Secretary of State Hillary Clinton suggesting WikiLeaks met the criteria for a terrorist organization presenting “a clear and present danger to the national security of the United States.”

Now comes the Freedom of the Press Foundation, co-founded by John Perry Barlow, John Cusack, Daniel Ellsberg, Glenn Greenwald, Xeni Jardin, and others to serve as an easy way to process donations to organizations like WikiLeaks that seek to shine a bright light on governmental activities that the government would rather remain hidden from view.

Individuals can use the Freedom of the Press Foundation’s website to anonymously donate to a collection of investigative journalism and transparency projects including WikiLeaks, MuckRock News, the National Security Archive, and the UpTake. Funding recipients will rotate, or at least change, over time. The Freedom of the Press Foundation’s criteria for choosing funding recipients will be based on a “record of engaging in transparency journalism or supporting it in a material way,” whether or not the organization has a “public interest agenda,” or if the candidate is under attack for “engaging in transparency journalism.”

In its first week of operations, the Freedom of the Press Foundation raised more than US$100,000 to support its efforts.

Earlier this month, Twitter censored the account of a Neo-Nazi group, Besseres Hannover, at the request of the German police. Last January, Twitter announced that it would transparently censor activity deemed to be illegal with as fine a level of granularity as possible. In its first test, Twitter has been both transparent and specific in its censorship, limiting the Besseres Hannover Twitterstream only from German IP addresses. Twitter’s general counsel, Alex Macgillivray, disclosed the censorship in two tweets:

Never want to withhold content; good to have tools to do it narrowly & transparently chillingeffects.org/notice.cgi?sID…. More info support.twitter.com/articles/20169…
— Alex Macgillivray (@amac) October 18, 2012

We announced the ability to withhold content back in Jan. We’re using it now for the first time re: a group deemed illegal in Germany.
— Alex Macgillivray (@amac) October 18, 2012

Twitter’s hardly alone in overusing its powers of censorship. In an earlier event, moderators of a Reddit subsection announced they were censoring links to the Gawker Media network of websites because one of the latter’s writers was thought to be working on exposing the true identity of a Reddit moderator. Reddit is owned by Conde Nast, and the supposition of the exposure turned out to be accurate. While many would find the Reddit speech in question offensive, it’s unquestionably protected. As is the work of the Gawker writer.

Even earlier than the Reddit/Gawker dustup, Google censored an offensive anti-Muslim video from Egyptian and Libyan IP addresses.

Google is also rumored to be the target of a US federal government investigation into the search giant’s illegitimately ranking its own content and products higher in its search results. Google responds by claiming First Amendment protection for its search results.

Nonetheless, censorship—either by state, corporation, or any other power-wielding entity—is unacceptable. While the bile spewed by some is truly vile, freedom of expression is an absolute right with very limited exceptions. As US Supreme Court Justice Louis Brandeis wrote in his 1927 Whitney v. California opinion, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

President Barak Obama’s Department of Justice is proposing to allow federal agencies to lie to people requesting information under the Freedom of Information Act (FOIA). The proposal would allow federal agencies to tell inquirers that certain documents don’t exist when, in fact, they do.

This little gem, slipped in as part of a long rule revision proposed by the Department of Justice, represents a drastic change from current practice. Currently, any federal agency can withhold requested information by issuing a Glomar response, neither confirming nor denying the existence of the requested information. The proposed change would allow agencies to “respond to the request as if the excluded records did not exist.”

The Glomar response is named for attempts by the Central Intelligence Agency (CIA) to suppress stories about its Glomar Explorer and activities to recover a sunken Soviet submarine.

Mike German, senior policy counsel for the American Civil Liberties Union (ACLU), tells Jennifer LaFleur, writing for ProPublica, “We don’t believe the statute allows the government to lie to FOIA requesters.”

The ACLU, Citizens for Responsibility in Ethics in Washington (CREW), and openthegovernment.org published a coordinated response (.pdf; 319KB), stating that the proposed rule change “will impede the judicial review that ensures government agencies are properly interpreting exemptions in the FOIA statute, and it will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”

US federal law enforcement and intelligence agencies are known for jumping ahead of the legal curve. The Federal Bureau of Investigation (FBI), for example recently denied documents requested under a FOIA request existed. The ACLU of Southern California suied and the court discovered that the documents did, in fact, exist. LaFleur cites US District Judge Cormac Carney’s amended order (.pdf; 94KB): “Government cannot, under any circumstance, affirmatively mislead the Court.”

But it continues. A few weeks ago, another US District Judge Alvin Hellerstein declined to hold the CIA in contempt of court for destroying video recordings of the use of torture in detainee interrogations in response to a FOIA request from the ACLU.

Update: Saturday, 5 November 2011 2:21PM CDT: The US Department of Justice has dropped its proposed FOIA revisions. David Kravets, writing for Wired, attributes the move to “political pressure.”

Once again demonstrating that it knows exactly on which side its bread is buttered, the New York Times has attempted to alter its coverage of history to make its benefactors look oh, so much better. But this is the age of instant media and the whole world is watching and easily catches the Times with its pants down around its ankles.

Corporate media—including the Times; especially the Times—has been reluctant to cover the Occupy Wall Street demonstrations that have now spread across the country. This weekend the New York City police entrapped more than 700 protesters on the Brooklyn Bridge who were then arrested.

Shortly before 7PM on Saturday 1 October, the Times’ lede began, “After allowing them onto the bridge, the police cut off and arrested dozens of Occupy Wall Street demonstrators.” Not entirely accurate, but orders of magnitude more accurate than the change made about 20 minutes later: “In a tense showdown over the East River, police arrested hundreds of Occupy Wall Street demonstrators after they marched onto the bridge’s Brooklyn-bound roadway.”

The two versions were juxtaposed at the speed of internet. Nick Greene, writing for the Village Voice, asked Andy Newman, the Times’ city room bureau chief why the change was made and got the following response:

“At every point yesterday as the story unfolded, we offered the most complete account we could of a large and chaotic scene that could not be grasped by any one person. The earlier version had almost no input from the police. The later version reflected the accounts of the police, protesters, and of course our reporters at the scene. The later version, read in its entirety (not just the one highlighted sentence in that photo), reflected the various perspectives much more thoroughly. The final version of the piece was more thorough still.”

Oh yes, thoroughness, of course. Never mind what video from the scene showed, the Times had to get input from the police. In the name of, cough, thoroughness. Never mind that the Times’ own freelancer, Natasha Lennard, one of those arrested, reported that police allowed the protestors onto the Brooklyn Bridge.

As Newman reports, Lennard’s on-the-scene published account initially included this graf:

“After allowing marchers from the Occupy Wall Street protests to claim the Brooklyn-bound car lanes of the Brooklyn Bridge and get partway across, the police cut the marchers off and plunged into the crowd and began making arrests around 4:15PM Saturday.”

Lennard’s graf was excised from subsequent versions of what the Times published.