[governance] The Government’s War on the Press

[Riaz K Tayob]

[given the global reach of US policies and the extraterritoriality 
inherent in use of the net, this article raises some concerns about 
abuse of state power in the US. It is particularlyworrying since many 
activists use the listserver RISEUP which was affected in a raid - that 
I had not heard about- and presents a plight that is far from sanguine. 
The challenge to internet governance, much like the Spanish domain name 
seizure, isthe extent to which US national interests conflict with their 
individual interests in circumstances where there is 
regulation/disciplines in which affected (noncitizens) are 
affected...From a human rights perspective, the issue is what governance 
arrangements need to be put in place to maintain the cosmopolitan nature 
of the internet (in the broadest sense) as well as sensibly manage 
diversity... ]

May 16, 2013
<http://www.counterpunch.org/2013/05/16/the-governments-war-on-the-press/print>
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The AP Seizures and the Frightening Web They've Uncovered


  The Government’s War on the Press
  <http://www.counterpunch.org/2013/05/16/the-governments-war-on-the-press/?utm_source=rss&utm_medium=rss&utm_campaign=the-governments-war-on-the-press>

by ALFREDO LOPEZ

“Paranoia,” said Woody Allen, “is knowing all the facts.” By that 
measure, we’re becoming more and more “paranoid” every day.

This week, we learned that the Obama Justice Department seized two 
months of records 
<http://www.nytimes.com/2013/05/14/us/phone-records-of-journalists-of-the-associated-press-seized-by-us.html?pagewanted=all&_r=0> 
of at least 20 phone lines used by Associated Press reporters. These 
include phone lines in the AP’s New York, Washington and Hartford, Conn 
offices as well as the main AP number in the House of Representatives 
press gallery, the private phones and cell phones belonging to AP 
reporters and a fax line in one AP office.

The government effected this massive seizure “sometime this year” 
according to a letter from the Justice Department to AP’s chief counsel 
this past Friday (May 10). The letter cites relevant “permission” 
clauses in its “investigative guidelines” and makes clear that it 
considers the action legal and necessary.

In many ways, this is the most blatant act of media information seizure 
in memory. It affects over 100 AP journalists and the countless people 
those journalists communicated with by phone during those two months. It 
violates accepted constitutional guarantees, the concept of freedom of 
the press and the privacy rights of literally thousands of people. 
Predictably and justifiably, press, politicians and activists have 
expressed outrage.

But as outrageous as the admitted facts are, the story’s larger 
implications are even more disturbing. It’s bad enough that the Obama 
Administration has grossly violated fundamental constitutional rights, 
acknowledged the violation and defended their legality. Even worse is 
that likelihood that the intrusion will probably be ruled legal, that it 
has been ongoing against other targets for some time and that this is 
only the tip of the intelligence-abuse iceberg.

The facts are still tumbling out daily but here’s what we know. While 
the Justice Department’s letter of notice to AP didn’t provide the 
reason for the seizure, the date of the seizure or the dates of the data 
seized, the timing hints strongly that this is tied to a major 
investigation of “whistle-blowing”. Last year, the AP used unnamed 
sources in a story about a Central Intelligence Agency effort to disrupt 
a Yemen-based terrorist plot to bomb an airliner. The AP, at the 
government’s request, held that story for several days but published it 
on May 7, 2012 after it was confident the plot had been foiled. Because 
the AP’s story ran a day before Federal officials were scheduled to 
announce their “victory”, it’s logical to assume Associated Press 
honchos knew the government would be unhappy.

So they were probably not surprised that, led by the U.S. Attorney 
Ronald Machen, federal investigators spent a year aggressively searching 
for the people who leaked the information. That’s vintage Obama. With 
six government “whistle-blowers” in jail or being prosecuted, federal 
law-enforcers have prosecuted twice as many whistle-blowers 
<http://www.salon.com/2012/02/09/obamas_unprecedented_war_on_whistleblowers/> 
as all previous Administrations combined over the course of two and a 
quarter centuries. But until now, the media-savvy Obama people have been 
careful to restrain their pursuit of the corporate press, limiting 
confrontations to an occasional request or demand for one source revelation.

That’s why these revelations are so shocking to media professionals and 
advocates. As AP’s CEO Gary Pruitt told Attorney General Eric Holder in 
his letter of complaint this week 
<http://www.wired.com/images_blogs/threatlevel/2013/05/Letter-to-Eric-Holder_reporter-call-records.pdf>, 
“These records potentially reveal communications with confidential 
sources across all of the newsgathering activities undertaken by the AP 
during a two-months period, provide a road map to AP’s news gathering 
operations and disclose information about AP’s activities and operations 
that the government has no conceivable right to know.”

There, in a nutshell, is the problem. For the corporate media, there is 
such still a thing as “no conceivable right to know”. Up to now, part of 
Obama’s information policy has been that mainstream media qualifies for 
First Amendment protection but “alternative” journalists and the news 
organizations they work for, as well as bloggers, activists, writers and 
others who work independently of major news organizations and who use 
the Internet as the free vehicle of communications it was invented to be 
have absolutely no protections. Since 2009, this government is known to 
have taken action against Internet activists and truth-tellers: seizing 
servers, email records and virtually all forms of on-line communications 
and then prosecuting people in over a dozen cases based on some of those 
seizures. There’s been very little action taken against the corporate 
press, which for its part has largely ignored or blacked out any 
reporting on the government attacks on its smaller media competitors.

This “favored status” commercial media has enjoyed has now been trashed. 
The “protected press” is as exposed as the rest of us. In answering 
Pruit’s letter, the Justice Department said as much. “We must notify the 
media organization in advance unless doing so would pose a substantial 
threat to the integrity of the investigation,” U.S. Attorney’s Machen 
spokesman William Miller explained, in a remark that went way beyond the 
traditional exemption for protecting lives. He added, “…we are always 
careful and deliberative in seeking to strike the right balance between 
the public interest in the free flow of information and the public 
interest in the fair and effective administration of our criminal laws.”

In fact, there was no urgency involved in the government’s assault on 
AP’s news operation — the incident in question was over — and seizure of 
this kind of information has traditionally been allowed only if a 
subpeona is issued, after the targeted media parties have had a chance 
to challenge the government intrusion in court. The courts, after all, 
constitute one of the protections of privacy and free speech we citizens 
have. Under our Constitution, the courts, not the government, are 
supposed to decide what is “the right balance,” as Miller put it.

Most of us lost those protections with the Patriot Act and the Justice 
Department’s updated guidelines 
<http://www.wired.com/threatlevel/2013/05/doj-got-reporter-phone-records/> 
which allow the government to engage in secret seizure if its 
investigators believe there is a real “security threat”. In fact, it is 
only required to announce that seizure when “it is determined that such 
notification will no longer pose a clear and substantial threat to the 
integrity of the investigation.” In other words, they can seize anything 
without a subpeona if they think they should seize it without a subpeona.

That I have learned personally and this is either a disclaimer or a 
claim to authenticity. Last year, the FBI snatched a server belonging to 
May First/People Link (my organization) from its location. We believe 
they were investigating some nut using anonymous servers (servers that 
don’t maintain records of who used them) to mail threatening emails to 
students at the University of Pittsburgh. We maintain one such server 
for our colleagues at Rise-Up.

The AP case applies the suspension of our rights to the “established” 
media, finalizing a remarkably swift collapse of balance of power 
protections by removing the courts from the equation.

It’s a moment described in the famous Civil Rights Movement saying, 
quoted by Angela Davis: “If they come for me in the morning, they’ll 
come for you at night.” After years of chipping away (largely without 
protest or even acknowledgement from the mainstream corporate media), at 
the rights of what the Administration considers the most dangerous and 
uncontrollable information source — the Internet and the activists and 
independent journalists who thrive on it like Wikileaks or Mayfirst, the 
web hosting service I helped found — they’ve now knocked on the door of 
the mainstream media.

To get a feeling for how dangerous this is, all one must do is trace how 
these investigations unfold and visualize the investigative web that is 
developing.

First, they get the phone records. In this case, the phone companies 
apparently just gave it to them. Protestations that these include “only” 
phone numbers called and nothing else collapse upon careful examination. 
Seized cell phone records (and their logs of emails, websites visited 
and texts sent) are now in the Justice Department’s hands along with all 
the numbers called by over 100 reporters on 20 phone lines. Starting 
with the phone numbers called, investigators can then go to commercial 
email providers (like Google’s Gmail) and seek records of everyone who 
the reporters contacted. After all, they can now search the providers’ 
databases against the acquired names and phone numbers!

Email on AP’s servers wasn’t seized — that could never be done 
“secretly”. But some AP reporters probably use their non-company email 
as well and investigators can go after that. Internet providers are 
under enormous pressure to give up those records and many, like Google, 
will do so voluntarily upon official government request. They’ve already 
done it for the Chinese government to help it go after its critics.

So anybody who gets a phone call from one of the seized lines during 
this period can now be investigated more aggressively without subpeonas 
using the powers of investigation the government already has and 
information it has already gathered in secret from reporters who had 
promised them anonymity.

Where is the limit? Without a court hearing, there is none. If an AP 
reporter called your phone or emailed you from a targeted cell phone, 
the government now knows it and your phone number (and possibly email 
address) is now part of the investigation. That gathered information now 
includes your name, address, phone number, calls you received and calls 
you made. If they got to the email, all of that is theirs. No matter 
what those phone calls or email messages from your cell phone are about, 
they are a part of a government investigation into a major security leak.

Once you’re in the mix, the government can then declare you an 
investigation “target” and legally seize read all your email and seize 
all the email of anybody your wrote. All of this activity is legally 
covered and, based on past government practice, can be done without 
informing you.

What’s more there are now indications that the government isn’t stopping 
there. According to the Washington Post, you don’t even need to be part 
of an investigation.

“Every day, collection systems at the National Security Agency intercept 
and store 1.7 billion e-mails, phone calls and other types of 
communications,” the Post reported 
<http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-beyond-control/print/> 
in its extraordinary series on government intelligence. “The NSA sorts a 
fraction of those into 70 separate databases.”

The Guardian’s Glen Greenwald argues that such numbers are only possible 
if the government is recording 
<http://www.guardian.co.uk/commentisfree/2013/may/04/telephone-calls-recorded-fbi-boston> 
every phone call, text and email being transmitted in this country. 
Several FBI whistle-blowers and former agents, he points out, have 
attested to that scope of activity.

To say you will be part of a prosecution or that the investigation would 
reach such lengths may, at this point, border on paranoia. But not long 
ago most of us would have considered paranoid the idea that such 
collection of data is even taking place. “Mass surveillance is the 
hallmark of a tyrannical political culture,” Greenwald wrote. To deny 
the danger in all this is to trust that the government won’t abuse this 
power or consider your completely legal activities to be dangerous.

Does the Obama Administration deserve that trust? Its stated position is 
that the government can collect and use any information of this type if 
there is a security reason to do so. The issue is what is a “security 
reason” and, since courts have been effectively removed from the 
process, that definition is completely in the hands of the Justice 
Department, Homeland Security, the FBI and the National Security Agency. 
If one of those agencies says you have no right to privacy, you don’t.

There are many people in this country working in opposition to the 
government. Many of them oppose policies and challenge laws. Many of 
them have relationships with similar activists in other countries and 
take up issues that affect those other countries. Should we really feel 
comfortable giving some government functionary the power to decide if 
our activities are “dangerous” or “pose a threat”? This is an 
Administration that has criminally charged Internet activists for 
violating terms of service agreements, smeared the reputations of 
countless legitimate activists in all kinds of movements and kept scores 
of people in Guantamo’s prison for years without charges, in most cases 
knowing and even conceding that they are innocent of any. Does that 
track record offer any assurance that they will be judicious and 
restrained with your information?

Should we trust them with the powers they have amassed? Clearly not, 
because, given the facts we already know, mistrust isn’t paranoia; it’s 
knowing the facts.

/*ALFREDO LOPEZ* is a member of ThisCantBeHappening! 
<http://ww.thiscantbehappenng.net>, the new independent three-time 
Project Censored Award-winning online alternative newspaper. /



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