Category Archives: media

zealous cooperation with the state

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

missing-non-white-women meme

this post on the buggydoo blog (“one good thing”) does two important things: (1) it makes a sensible comment on the snarky ‘media coverage of missing white women’ blog-o-phenomena, and (2) it draws attention to a missing woman, Latoyia Figueroa, who has not gotten as much media attention, clearly on account of race.

I am uncomfortable with the bloggers who have been sneering about “missing white women” lately, mostly because it doesn’t have the effect I think they’re going for. It’s very trendy with liberal bloggers to make comments like “Oh, ho hum, look at the media go crazy over another missing white woman.” or “CNN isn’t covering the war in Iraq because, hold the presses, there’s another missing white woman!” I understand the intent behind this is to point out the racism behind the manufactured press hysteria, but what actually happens is this: black, asian, and hispanic women still get ignored, and white women are held in contempt and blamed for media coverage over which they have no control. That’s it.

For more info on Latoyia Figueroa (and positive responses to lack of attention to missing non-white-women), see black feminism and the one good thing post.

related posts: Juárez: missing non-white women meme, at work?

ip/cyber/1a stuff

  • Radikal Russ on Daily Kos posted about severe cognitive dissonance fostered by Grokster in the secondary liability rules:

    If a company makes a product that is inappropriately used to illegally copy a movie, that company is liable. If a company makes a product that is inappropriately used to illegally kill a human, that company is not liable. What’s the common logic holding these disparate concepts together? Massive corporate special interest money. Welcome to your government of the corporations, by the corporations, and for the corporations, where a pirated copy of “Hollywood Homicide”* is bigger threat than an actual Hollywood homicide.

  • EFF is running a 15 anniversary blog-a-thon, in which people post about how they became information radicals (my phrase). Aggregators: Technorati and PubSub. [me too]
  • Nitke v. Ashcroft: First Amendment / CDA decision. Good commentary by Wirenius (plaintiff-side attorney). Other links: copyfight, rounding up various links; Wendy Seltzer, posting the decision.
  • NYT coverage of NY payola settlement with Sony. Check out some of the details at the Village Voice (7/26). So, what we have is a consolidated radio industry that generates its playlists in national headquarters takes payola for playing hits that nobody would otherwise want to hear. If I tried to devise the crappiest possible way of using scarce airwaves, seeking out talent, and maximalizing human fulfillment, it might look something like the current recording / radio industry.
  • more stuff on the PTO denial of the “Dykes on Bikes” TM: Cathy Resmer on the DTWOF blog. As a dyke, I can attest that I don’t find “dykes on bikes” at all offensive … PTO, please don’t protect me.
  • the pensacola news journal editorial about wal-mart’s refusal to carry their paper because of an anti-wal-mart column is a must-read. [link from copyfight] (PS: Wal-Mart lifted the ban & apologized [link from])

bi lies, reprised

Remember the kerfuffle about the stupidly titled NYT article on bisexuality? (Straight, Gay or Lying? Bisexuality Revisited) The study, to be published in Psychological Science in Aug. 2005, was described by NYT science writer Benedict Carey as suggesting that there are no truly bisexual men, and indeed it seemed as if the study’s authors fostered that interpretation.

Bay Windows (the New England lgbt paper), and the Ottawa Citizen, got a different perspective from one of the authors, grad student Meredith Chivers, who described it as “ludicrous” to “reduce sexual orientation to a question of sexual arousal”. She also added that she and her coauthors “disagree[d] about the definition of sexual orientation. … I think the study shows that sexual orientation is a multifaceted and complex psychological construct and sexual arousal is only one part of that construct.”

Finally, commenting directly on the NYT coverage, she said:

I think the negative response to the New York Times article headline is warranted. I hope that people who are active in this controversy will also read the original article with an unbiased mind, so that they can decide for themselves, rather than unequivocally accept the information the media has provided thus far.

I hope so, too, but in fact most people won’t have access to Psychological Science [“The page you requested is only available to APS members”]. Without open access to the scientific literature, we must rely solely on science reporting. Which is why accurate reporting that captures nuance rather than elides it is so crucial.

update 8/15: americablog posted on 7/6 some interesting details about the study’s main author, Dr. J. Michael Bailey.

Related posts: Bi Lies (7/5)

judith miller, the NYT, and journalism

from slate: Programming the Slammer Film Festival – Readers choose the most enlightening fare for Judith Miller. By David Edelstein

7/8 update: here’s a couple more good commentaries: avedon carol [sideshow] and Rosa Brooks in the LAT. Money line from Rosa Brooks:

If a source with a clear political motivation passes along classified information that has no value for public debate but would endanger the career, and possibly the life, of a covert agent, is a journalist ethically permitted to “out” the no-good sneak? You bet. And if the knowledge that they can’t always hide behind anonymity has a “chilling effect” on political hacks who are eager to manipulate the media in furtherance of their vested interests, that’s OK with me.


The Forwarding-government-propaganda privilege: Somehow, just not so compelling.

… In the interests of fairness, a few thoughtful pieces on protect-judy side: billmon wrestling with his desire to justify jail for judy … And the Columbia Journalism Review (Jan/Feb 2005) ran a good article outlining the pro-Judith-Miller position and the general threats to the press that have happened of late. The author asks concernedly at the end: Would people rise up in defense of the reporters’ privilege, and reporters, if these two reporters go to jail? And answers his own question: I didn’t think so. The article details (a) various attacks on the “fourth estate” by government in the last few years; and (b) why people distinguish what Judith Miller is doing from what they want to see protected.

… But now that I’m thinking about I just have to get in 2 or 3 more cents: From one perspective, Judith Miller may, indeed, be just another front in a general way by the state on the press. As such, Judith Miller should have been just another footnote, an example of when the RP shouldn’t apply, or why it can go too far, or why good privileges sometimes produce bad results … So the problem is not with Judith Miller invoking a reporters’ privilege & going to jail for it. The problem is that the NYT chose to put forward Judith Miller as the poster-child for the reporters’ privilege, and chose not to profile and highlight and defend the other cases. Hard cases make bad law, as they say. And the NYT chose a hard case to make law on: hard as in not appealing, factually bad, not getting to the essence of why the reporters’ privilege is important. Why did the NYT do that? I think the NYT is trying to make itself look good: Oh, look how we defend freedom of the press.

Putting Judith Miller together with the NYT’s actual reporting on freedom of the press issues, I don’t see a very pretty picture. It looks to me like the NYT ignores the broader issue of reporters’ freedom when it could actually do some good, and instead puts forward the case only when its narrow self-interest is involved. If the NYT was actually interested in freedom of the press, for instance, then why not more coverage and pressure and amicus briefs on behalf of journalists who are protecting sources for important information we needed and otherwise would not have had? Or for that matter, why not more coverage of the record numbers of dead reporters in Iraq? The targeted bombing by the US of Al-Jazeera? Etc. ….

“Now, you say you love me. Well, just to prove, you do, you can cry me a river; I cried a river over you.”

8/12 update:

Another good post on the topic, by Charlie Anders of Other Magazine:

Actually, Anita Bartholomew had it right: the real reason not to give Miller the award is that she was protecting confidential sources who were trying to silence whistleblowers instead of blowing the whistle themselves. It’s a pretty basic distinction, and one the mainstream media seems to have forgotten. Back when I was starting out as a reporter, we were warned to use confidential sources sparingly and to be aware of their agendas if we did use them. If your source works for the government and is pushing the government’s agenda (or ditto for a corporation) then he or she is just a cowardly shill.

first amendment monopolies for broadcasters

A few months ago (how did I miss this?) CoCo (Constitutional Code in the Realm of Culture) posted about an FCC paper that basically kills the scarcity doctrine, thereby significantly undercutting the rationale for FCC regulation of broadcast airwaves.

CoCo correctly points out that this has both a big potential plus and a big potential minus: (a) first, the plus: the government has less justification for federal obscenity & decency regulations; but (b) the minus: broadcast owners have more justification for trying to ditch things like must-carry rules, the fairness doctrine (if it existed anymore), and other aspects of state regulation in the public interest. (I distinguish between obscenity/decency regulations and the public interest but it must be said that some folks would put both items together, in either the plus or minus columns depending on their politics. I’ll call them both “public policy” regulations, reserving the right to distinguish between good and bad public policy regulations.)

But the so-called First Amendment rights of broadcast corporations stem from the government-granted monopoly they have over particular chunks of the airwaves. So, yes, a dead scarcity doctrine undercuts the rationale for the public policy regulations. But it also undercuts the rationale for the government-granted monopolies in the first place.

So imagine this admittedly unlikely scenario: the FCC gets out of the licensing, as well as the content-regulating, business altogether. Be conservative and leave the FCC the role of standard-setting body, establishing broadcast ranges for this and that type of broadcast. What might the broadcast environment look like? Lots of broadcasters, competing with each other for the airwaves. Encrypted content delivered and decrypted by commercially available equipment. Cooperative groups of content providers? Imagine all the benefits of low power FM, cited by media activists, church groups, union organizers, and the like, but available to all. Sounds pretty good to me. If the FCC isn’t acting as procurer and police for large corporations, handing out and enforcing monopolistic control over chunks of the airwaves, then maybe we don’t have to worry so damn much about the so-called First Amendment rights of large corporate entities.

So, the scarcity doctrine is dead. Long live the age of plenty.

Hirsch seems confused about the point of documentary interviews

The documentary film weblog reports that an attorney who was interviewed for “Super Size Me” is now suing on defamation etc. for using his filmed quotes in the film.

… shall I risk re-publisher liability for quoting the allegedly defamatory statements? Yes, I’m feeling willful today (or perhaps just very very dubious about the likelihood of success on the merits of this litigation): According to the NY Observer March 13 article,

In his only appearance on camera, Mr. Spurlock asks Mr. Hirsch about his motivation for being involved in the McDonald’s litigation. Mr. Hirsch’s reply? “You mean, motive besides monetary compensation?” He then added, “You want to hear a noble cause?”

Dude. You were being filmed for a documentary. You didn’t think that the footage might actually get used? … I don’t think that this sort of lawsuit is going to make people look more charitably on the underlying McDonald’s-contributes-to-obesity lawsuit.

emma goldman documentary

A good friend taped the Emma Goldman documentary a few months ago, but I hadn’t watched it until this weekend — I was captive in a TV room while packing, and didn’t want to take a VHS tape to my new home which will have neither a VCR nor a TV.

A few nits to pick:

  • One, no anarchists interviewed! Nice to have some social activists (velvet revolution guy) and commentators (Tony Kushner, playwright) interviewed, but no self-defined anarchists?
  • Two, so funny how they have to do the free love re-creation with actual nekkid sex.
  • No discussion of Emma’s visit to Spain during the Spanish Civil War and revolutionary period. Which impressed her and, I think, rejuvenated her spirits in the post-Bolshevik disappointment.

Still, though. Emma Goldman documentary. Cool.

ip/tech round-up

So many interesting IP/tech stories to follow & things to read, squeezing in updates between political polls … must link appropriately later, but for now will just jot, a way to organize my fevered mind:

  • The Lessig blog spanked Richard Epstein for his “why open source is unsustainable” article. … I’m wishing I had thought of a different way to say that.
  • Did I mention that I love NY Attorney General Eliot Spitzer? He’s looking into the record labels.
  • Kahle v. Ashcroft oral arguments postponed.
  • The new HBO copy protection scheme.
  • The Induce Act died. The ensuing legislative paste-up (HR 4077) also died. For now. Stay tuned for CDBTPA/Induce/HR 4077 II: Copyright Über All (alternate title: Return of Copyright)
  • Podcasting. … Apparently it’s a new Big Deal, and folks are concerned about the legal liabilities of podcasting copyrighted music. I will probably regret saying this at some point when I am shown the error of my ways, but how is this different (copyright liability-wise) from MP3 blogs? I mean, assuming that in either case the podcast / mp3blog is disseminating copyrighted files (probably music) that the copyright owner hasn’t authorized. What the hell, I don’t even really know what it is right now, although I can sort of guess from the name. But that’s why it’s on my list — an issue I’m tracking.
  • Disney is being sued over Peter Pan. How delightful to see the myriad ironies of copyright bite Disney on the ass.
  • Rosa Parks. Not likely to make significant law, but another example of IP laws interfacing (negatively) with our most valuable and esteemed cultural and historical signifiers. The NYT article from 10/18 briefly explains how the Rosa and Raymond Parks Institute for Self Development [co-founded by Elaine Steele] is suing OutKast & its publisher over its song, “Rosa Parks,” which protests the recording industry’s treatment of artists. The references to Rosa Parks are (a) the title; and (b) the line, “Ah ha, hush that fuss; Everybody move to the back of the bus.” The Institute is suing OutKast for right of publicity, trademark and defamation. (!) Her family states that Ms. Parks would not approve of the lawsuit.
  • A couple of interesting take-down experiments in the last few months. One recently involved, I think, a hotmail account sending fake C&Ds to ISPs where public domain works were posted (by the C&D senders, under other addresses). Not surprisingly the works were removed. The other experiment was several months ago, as I recall, and was one recognizably public domain work, also taken down. And the Free Expression Policy Project studied the Chilling Effects database to see takedown outcomes.
  • The DOJ last week (was it only last week? maybe 10 days ago) vowed to fight, fight, fight against those evil IP rights infringers. … Hey, whatever happened to the anthrax senders? [DOJ Report of the DOJ Task Force on IPashcroft remarkspress release]
  • The Supreme Court denied cert in Verizon. Ha.
  • All these fun cases: Grosso v. Miramax, 9th Circuit (unsolicited script leads to implied contract leads to potential claim for copyright infringement! yikes)
  • Arkansas Democrat-Gazette v. Brantley, Arkansas Supreme Court. Copyright is hurting America.
  • And did I mention Jon Stewart and his delightful CNN Crossfire interview? Media criticism done ju-u-u-st right.
  • Voting technology issues galore. Waay too many to list here.
  • The Chinese “happy birthday” trademark which was posted several places, including EFF and umm I think Guiding Rights. Not as upsetting as it initially sounds but still — absurd!Can’t some TM office just say NO to silly, silly trademarks like this?
  • Indymedia got their servers back but is still trying to figure out just what the hell really happened.
  • Oral arguments in the webcasting royalty rates case.
  • FTC decided to go after spyware. [hat tip to Susan Crawford, 10/16]
  • I love the ALA, Public Knowledge, and others, who have challenged the FCC’s jurisdiction to impose a broadcast flag.

… hat tips to copyfight and eff deep links and susan crawford and guiding rights and a bunch of other fabulous blogs all linked under info blogs …

on sinclair’s classification of “news”

pandagon makes a good point regarding sinclair broadcasting’s classification of the anti-kerry film as “news”:

Sinclair is neither a news organization nor, as a broadcaster, charged with judging what requires reporting and what doesn’t. That the journalistic institutions of this country felt the Swift Liars had enjoyed enough undeserved attention is no more cause for Sinclair to jump into the ring than for Toys R’Us to start offering O’Neil action figures (now with decades old grudge and losing debate skills!).

pandagon [10/12]

newsflash: the NYT can’t predict the future

Apparently, the New York Times can’t predict the future:

It is unclear whether the contest has merely reverted to a steady state in which neither candidate can establish a clear lead, whether Mr. Bush can regain the advantage with a strong performance in the second and third debates or whether Thursday marked a turning point at which Mr. Kerry firmly seized the initiative.

— NYT, 2004-Oct-04, Richard W. Stevenson & Janet Elder, “Poll Results Show Race for President Is Again a Dead Heat.”

So it is unclear whether Bush will pull ahead, Kerry will pull ahead, or the next weeks will continue to show the two candidates tied. Insightful.

Janet & Richard aren’t to be blamed, though. This kind of “duh!” reporting is the norm when the poll is the story. If you want actual insight into the issues of the campaign you must look elsewhere.

everyone agrees: running a campaign is as more important as running the country

The Web’s metamorphosis into a haven for armchair strategists seems all the more natural when you consider the fetishization of political operatives that has increasingly become the obsession of all media covering modern elections. It’s well established that there are not nearly as many stories about policy today as there are about campaigns and the personalities who people them. John Kerry’s capacity to run a presidential campaign is deemed at least as important as his capacity to, you know, run the country. The success of the DA Pennebaker film “The War Room,” and “K Street,” and especially “The West Wing,” a TV show created by a political junkie as a gift to the rest of us afflicted with the bug, just underlines the point. One of the hottest video games in recent months has been “The Political Machine,” which is no doubt the first game ever to feature as its primary villain the vexing mathematics of the Electoral College. And finally, for proof that we are ever more concerned about the horse race rather than the issues of the presidential race, look no further than the talking heads on cable news, constantly plumbing the depths of a sole overarching political-strategy story line, “What should Candidate X do next?” Technology | How the Internet turned everyone into James Carville by Farhad Manjoo — (emphasis added)


favorite jon stewart “the daily show” moment: in the friday sept 24, stewart was discussing a bush press conference, like this: “Blah blah blah, at Bush’s press conference, reports with their [pause, air-quotes with hands] ‘questions‘ …”

manipulating information

The Enemy Is Us by Sam Gardiner in, sept. 22. Gardiner details how the bush administration has been using military information techniques to manage press coverage & release information to the american people.

[T]he basic doctrine of strategic information operations: Influence emotions, motive and objective reasoning. Use repetition to create a collective memory in the target audience. … The Army Field Manual describes information operations as the use of strategies such as information denial, deception and psychological warfare to influence decision making. The notion is as old as war itself. With information operations, one seeks to gain and maintain information superiority — control information and you control the battlefield. And in the information age, it has become even more imperative to influence adversaries.

umm, we used to call it propaganda?