Follow-up on the seizure of IndyMedia servers from a few months (a year?) ago: Apparently, when Rackspace claimed that they were seized by the FBI, what Rackspace should have said is, “We seized them for the FBI.” Volokh Conspiracy [7/31] takes the opportunity to issue a gentle ‘i told you so’: the FBI was right & proper & all the blame is on rackspace. EFF has more details on the investigation.
VC [specifically, Orin Kerr] goes a bit further than merely saying that his skepticism was borne out: He suggests this is an all too common pattern for online civil rights stories: lots of press, hints and allegations against the government, refusal to comment by the government, all combining to produce a lot of noise and little heat. This version of the story tracks a general conservative theme, which is that government is good, and media is bad for portraying government as (occasionally) bad.
Hmm. As an ‘I-told-you-so’, this is not the strongest case. Members of the online press may cover these stories in their online-centric work (especially on the IndyMedia sites, of course), but the Indymedia-Rackspace-FBI story barely cracked a back-section in the offline world. I would hazard a guess that the vast majority of such claims, offline or online, get little or no media attention. And it so happens that in this particular instance, the press coverage focused on Rackspace as well as the FBI. (Also, the comments section points out that it may not actually be an all-Rackspace-to-blame situation; the FBI may have unofficially exerted pressure that doesn’t show up in the official documents as censored and released. I respect Orin Kerr a hell of a lot, but it was pretty amusing to see him display what looked like a naive trust in the uprightness of his former fellow government employees: I don’t understand. …. Are you suggesting that the FBI may have pushed Rackspace to hand over the physical servers instead of the logs?.)
Nevertheless, the incident and its follow-up led me to meditate on the state of society. One might indeed be thankful that the FBI is not directly strong-arming ISPs to take servers, or at least didn’t in this instance, and still feel disheartened by an attitude that seems to encourage over-zealous cooperation by private entities with governmental authority.
Indeed, zealous coooperation with misguided and even truly evil state policies pretty much seems to be the rule rather than the exception. A repressive society is never created by state officials alone. State officials help to establish a climate; zealous private followers spread that climate. One has only to think of the fascist governments of the 1930s for an example; the McCarthy hearings (should we call it an era?) provides another. In fact, almost all efforts by a government to drum up support for a war end up working hand-in-hand with an awful lot of aggressive over-reaction and over-support by patriotic volunteers — e.g., Judith Miller and her NYT editors’ roles in disseminating White House propaganda prior to the invasion of Iraq. Whatever Miller’s role in the propagandizing effort, her NYT editors weren’t government conspirators; they were merely cooperative. CBS’ delays in breaking the Abu Ghraib story were likewise cooperative efforts by private citizens. Anybody can see, in action, at any time, individuals privately pushing someone else’s agenda; examples abound, today and every day.
Which is why I am nervous when government officials accept the fruits of private misdeeds. And why I am pretty unconcerned with the ‘poor FBI’ picture that Kerr paints. Indeed, I have very little sympathy for any institution suffering an examination of its use of power.
Institutions ought to self-police, and I have no doubt that the FBI writes and trains agents with numerous rulebooks laying out the legal limitations on agents’ actions. But it only has those rulebooks because of the vigorous policing efforts of private citizens who are not zealously cooperating. Self-policing is never enough. People with access to power naturally seek to accumulate more, and multi-individual, multi-individual institutions that retain power, especially governments, foster that tendency. This isn’t a secret; it’s why the founders attempted to establish a government whose powers were “limited”. But since self-policing is never enough, it is essential that anybody subject to power police its exercise. The media provides an opportunity for citizens to police state power. Such policing is only possible by turning a light onto the actions of the state agents. Media inquiries into police actions are, in that sense, sort of like a supervisor inquring about an employee’s use of departmental resources. One would imagine in a well-run department that such inquiries would be routine, even anticipated by reports, and certainly not the subject of lamentations. As conservatives sometimes like to say: If they’ve got nothing to hide, then they won’t mind a little scrutiny.
Related posts: 2004/10/8