Posts tagged law

Just Write What the Government Tells You The News: The Justice Department tracked Fox News’ correspondent James Rosen in an attempt to tie leaks on North Korea to a government advisor. Via Glenn Greenwald: If even the most protected journalists - those who work for the largest media outlets - are being targeted [for leaks by the Justice Department], and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable. Image: Twitter post from Karen Tumulty

Just Write What the Government Tells You

The News: The Justice Department tracked Fox News’ correspondent James Rosen in an attempt to tie leaks on North Korea to a government advisor.

Via Glenn Greenwald:

If even the most protected journalists - those who work for the largest media outlets - are being targeted [for leaks by the Justice Department], and are saying over and over that the Obama DOJ is preventing basic news gathering from taking place without fear, imagine the effect this all has on independent journalists who are much more vulnerable.

Image: Twitter post from Karen Tumulty

There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters. These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.

Gary Pruitt, President and CEO of the Associated Press, in a letter (PDF) to US Attorney General Eric Holder.

The News, via the AP:

The Justice Department secretly obtained two months of telephone records of reporters and editors for the Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, according to attorneys for the AP.

In all, the government seized those records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown but more than 100 journalists work in the offices whose phone records were targeted on a wide array of stories about government and other matters.

As Declan McCullagh, chief political correspondent for CNET, points out, 28 CFR 50.10 (the Code of Federal Regulations) includes the following:

No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General… Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action.

So, evidently, Eric Holder gave his express authorization for monitoring of the Associated Press’ phone records. Besides the initial WTF, we wait to hear how this is spun to justify the intrusion.

FBI Wants Power to Fine Internet Chat Providers That Don't Comply With Real-Time Spy Orders

Via Slate:

Bad news for telecommunications companies: New details have emerged about the FBI’s efforts to upgrade its surveillance powers—and the feds’ latest idea is to heavily fine firms that don’t comply with eavesdropping requests.

Last month I reported that the bureau said it was having a hard time monitoring services like Gmail, Google Voice, and Dropbox in real time when attempting to spy on criminals. The FBI’s general counsel Andrew Weissmann revealed in a speech that a “top priority” for the bureau in 2013 was to reform surveillance laws in order to force email, cloud services, or online chat providers like Skype to provide a wiretap function. The 1994 Communications Assistance for Law Enforcement Act already allows the government to mandate Internet providers and phone companies to install surveillance equipment within their networks. But it doesn’t apply to third-party providers—like Google or Facebook—which has led the bureau to claim that its ability to monitor suspected criminals’ conversations is “going dark.”

Now, according to the Washington Post, the feds have prompted a government task force to draft a proposal to update CALEA and the 1968 Wiretap Act to put more pressure on companies that do not currently fall under the scope of their powers.* This could involve, the Post reports, “a series of escalating fines, starting at tens of thousands of dollars, on firms that fail to comply with wiretap orders.” If a company fails to comply with an order in a set timeframe, it would “face an automatic judicial inquiry, which could lead to fines. After 90 days, fines that remain unpaid would double daily.”

Legal Guide for Bloggers | Electronic Frontier Foundation

It’s World Press Freedom Day and while it’s historically been thought of as a day to reflect, celebrate and promote traditional press freedoms, it’s expanded with the understanding that activists, pro-am journalists and ordinary citizens deserve their communication and publishing rights protected as well.

The Electronic Frontier Foundation has a great legal guide (US) for bloggers of all stripes to navigate issues ranging from legal liability issues to reporter’s privilege and issues specific to student bloggers:

Like all journalists and publishers, bloggers sometimes publish information that other people don’t want published. You might, for example, publish something that someone considers defamatory, republish an AP news story that’s under copyright, or write a lengthy piece detailing the alleged crimes of a candidate for public office.

The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you’re doing is legal. And on top of that, sometimes knowing the law doesn’t help - in many cases it was written for traditional journalists, and the courts haven’t yet decided how it applies to bloggers.

But here’s the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn’t use the law to stifle legitimate free expression. That’s why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.

Read it. Bookmark it. And blog away.

CISPA Is Not Dead

Visit Fight For The Future and CISPA Is Back for an overview and actions you can take, and the Electronic Frontier Foundation for background on the bill since it passed the House and what happens next as it moves to the Senate.

Meantime, the White House responded to an anti-CISPA petition signed by over 100,000 people with — in part — the following:

The White House issued a veto threat for the Cyber Intelligence Sharing and Protection Act (CISPA) on April 16, because the legislation did not fully address our core concerns (especially the protection of privacy). Even though a bill went on to pass the House of Representatives and includes some important improvements over previous versions, this legislation still doesn’t adequately address our fundamental concerns…

…There is broad consensus on the need for more threat-related information sharing — including among the leading privacy advocates we regularly engage on the issue. The essential question on which people across the spectrum disagree isn’t if we can share cybersecurity information and preserve the principles of privacy and liberty that make the United States a free and open society — but how.

Related: Here’s something to chew on, via Wired:

A secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States “for foreign intelligence purposes,” the Justice Department reported this week.

The report, released Tuesday to Harry Reid, the Senate majority leader from Nevada, provides a brief glimpse into the caseload of what is known as the Foreign Intelligence Surveillance Court. None of its decisions are public.

The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either.

Image: Via CISPA Is Back. Select to embiggen.

We have had gadflies among us ever since [Socrates], but one contemporary breed in particular has come in for a rough time of late: the “hacktivist.” While none have yet been forced to drink hemlock, the state has come down on them with remarkable force. This is in large measure evidence of how poignant, and troubling, their message has been.

Hacktivists, roughly speaking, are individuals who redeploy and repurpose technology for social causes. In this sense they are different from garden-variety hackers out to enrich only themselves. People like Steve Jobs, Steve Wozniak and Bill Gates began their careers as hackers — they repurposed technology, but without any particular political agenda. In the case of Mr. Jobs and Mr. Wozniak, they built and sold “blue boxes,” devices that allowed users to defraud the phone company. Today, of course, these people are establishment heroes, and the contrast between their almost exalted state and the scorn being heaped upon hacktivists is instructive.

Peter Ludlow, New York Times Opinionator Blog. Hacktivists as Gadflies.

FJP: Ludlow argues that while American society celebrates its hackers, the ones they do are those that are “non-political”, and hack to start companies. See: Jobs, Wozniak, Gates and Zuckerberg.

For those with a political agenda — perceived or otherwise — the law comes down hard. See: Andrew “Weev” Auernheimer (writing a script to collect personal information exposed by AT&T and handing the results of his investigation into the security hole over to Gawker) and sentenced to 41 months in prison; Barrett Brown (linking to a publicly available Web page containing the results of a credit card hack committed by others) and now facing charges of up to 100 years on 12 counts of credit card fraud; and Aaron Swartz (writing a script to download academic articles but not distributing them) who killed himself before before going to trial in a case that could have meant 35 years in prison, among others.

As we’ve pointed out before, US laws like the Computer Fraud and Abuse Act are so broad — and so out of date in our current networked environments — that almost all of us, technically, do things that put us on the wrong side of the law.

Writes Ludlow:

When everyone is guilty of something, those most harshly prosecuted tend to be the ones that are challenging the established order, poking fun at the authorities, speaking truth to power — in other words, the gadflies of our society.

Related: Boing Boing, CISPA: Congress wants to create unlimited Internet spying powers.

When the Government Comes Knocking, Who Has Your Back?

Hat tip to Josh Stearns for making us aware of this 2012 report.

Via the Electronic Frontier Foundation:

When you use the Internet, you entrust your online conversations, thoughts, experiences, locations, photos, and more to companies like Google, AT&T and Facebook. But what happens when the government demands that these companies to hand over your private information? Will the company stand with you? Will it tell you that the government is looking for your data so that you can take steps to protect yourself?

The Electronic Frontier Foundation examined the policies of 18 major Internet companies — including email providers, ISPs, cloud storage providers, and social networking sites — to assess whether they publicly commit to standing with users when the government seeks access to user data. We looked at their terms of service, privacy policies, and published law enforcement guides, if any. We also examined their track record of fighting for user privacy in the courts and whether they’re members of the Digital Due Process coalition, which works to improve outdated communications law. Finally, we contacted each of the companies with our conclusions and gave them an opportunity to respond and provide us evidence of improved policies and practices. These categories are not the only ways that a company can stand up for users, of course, but they are important and publicly verifiable.

While some Internet companies have stepped up for users in particular situations, it’s time for all companies that hold private user data to make public commitments to defend their users against government overreach. The purpose of this report is to incentivize companies to be transparent about what data flows to the government and encourage them to take a stand for user privacy when it is possible to do so.

Read through for the report’s findings.

Judge Rules it’s Illegal to Resell Digital Music Back in the days when I was a teenager, friends would share music with each other, trade tapes or vinyl or cd’s, and even head down to the local music store to buy and sell used music. Today, copyright — and rulings about copyright — makes our musical life much more difficult. Over the weekend a federal judge in New York ruled that it’s illegal to sell our mp3’s (PDF). The case involved a Boston startup called ReDigi, which bills itself as a marketplace for “pre-owned” digital products” and Capitol Records, one of the major American record labels. Via Ars Technica: For years, many a music fan has wondered what we first posited back in 2008: “Can I resell my MP3s?” After all, as we’ve pointed out in the past, nearly all digital good sales are really licenses rather than sales as conventionally understood. The question here is, can such a license be bought and sold to other users? On Saturday, a federal court in New York ruled in summary judgment within the case of Capitol Records v. ReDigi. The court decided that no, users do not have the right to resell digital music files, as doing so violates existing copyright law. ReDigi, the judge found, is also liable for secondary copyright infringement and likely will have to pay damages. As Slate notes, the judge’s decision is “is clearly influenced by” a 2001 US Copyright Office report to Congress that argued against digital reselling because digital objects don’t degrade over time like analog objects do: But isn’t the ability to create copies of works that don’t degrade over time, on balance, a positive development as opposed to something to be feared? Don’t the upsides of technologies that can allow information to be moved instantaneously and at negligible cost outweigh the downsides? The Copyright Office’s 2001 opposition to a digital first-sale doctrine was grounded in part on the legitimate concern that people might resell copies of digital works while also retaining them. The technology to ensure that the seller’s copy was deleted was deemed “not viable at this time.” However, that is no longer true. As indicated by ReDigi’s service—and by a digital resale patent from Amazon and a patent application from Apple—there are solutions that can help ensure that a single digital sale by a retailer doesn’t turn into multiple digital copies in the secondary market. Are these solutions perfect? Of course not. But do they represent good-faith efforts to harness technology in a way that respects the rights of owners of legitimately purchased content as well as those of copyright holders? Yes, they do. So, if you’re tired of those Justin Bieber mp3’s you once so enthusiastically bought and thought you could sell them for a few pennies a pop, you’re out of luck. I also don’t see how or why this ruling wouldn’t affect any digital “purchase” we make from books, to movies to software. And by purchase, check the terms and conditions, because what we really mean is license. We no longer own what we buy. — Michael

Judge Rules it’s Illegal to Resell Digital Music

Back in the days when I was a teenager, friends would share music with each other, trade tapes or vinyl or cd’s, and even head down to the local music store to buy and sell used music.

Today, copyright — and rulings about copyright — makes our musical life much more difficult.

Over the weekend a federal judge in New York ruled that it’s illegal to sell our mp3’s (PDF). The case involved a Boston startup called ReDigi, which bills itself as a marketplace for “pre-owned” digital products” and Capitol Records, one of the major American record labels.

Via Ars Technica:

For years, many a music fan has wondered what we first posited back in 2008: “Can I resell my MP3s?”

After all, as we’ve pointed out in the past, nearly all digital good sales are really licenses rather than sales as conventionally understood. The question here is, can such a license be bought and sold to other users?

On Saturday, a federal court in New York ruled in summary judgment within the case of Capitol Records v. ReDigi. The court decided that no, users do not have the right to resell digital music files, as doing so violates existing copyright law. ReDigi, the judge found, is also liable for secondary copyright infringement and likely will have to pay damages.

As Slate notes, the judge’s decision is “is clearly influenced by” a 2001 US Copyright Office report to Congress that argued against digital reselling because digital objects don’t degrade over time like analog objects do:

But isn’t the ability to create copies of works that don’t degrade over time, on balance, a positive development as opposed to something to be feared? Don’t the upsides of technologies that can allow information to be moved instantaneously and at negligible cost outweigh the downsides?

The Copyright Office’s 2001 opposition to a digital first-sale doctrine was grounded in part on the legitimate concern that people might resell copies of digital works while also retaining them. The technology to ensure that the seller’s copy was deleted was deemed “not viable at this time.” However, that is no longer true. As indicated by ReDigi’s service—and by a digital resale patent from Amazon and a patent application from Apple—there are solutions that can help ensure that a single digital sale by a retailer doesn’t turn into multiple digital copies in the secondary market. Are these solutions perfect? Of course not. But do they represent good-faith efforts to harness technology in a way that respects the rights of owners of legitimately purchased content as well as those of copyright holders? Yes, they do.

So, if you’re tired of those Justin Bieber mp3’s you once so enthusiastically bought and thought you could sell them for a few pennies a pop, you’re out of luck. I also don’t see how or why this ruling wouldn’t affect any digital “purchase” we make from books, to movies to software. And by purchase, check the terms and conditions, because what we really mean is license. We no longer own what we buy. — Michael

Under 18? Then It’s a Criminal Offense for You To Read Some News Sites Via the Electronic Frontier Foundation: As we’ve explained previously, in multiple cases the [Department of Justice] has taken the position that a violation of a website’s Terms of Service or an employer’s Terms of Use policy can be treated as a criminal act. And the House Judiciary Committee has floated a proposal that makes the DOJ’s position law, making it a crime to access a website for any “impermissible purpose.” For a number of reasons, including the requirements of the Children’s Online Privacy Protection Act, many news sites have terms of service that prohibit minors from using their interactive services and sometimes even visiting their websites. Take, for example, the Hearst Corporation’s family of publications. If you read the terms of use for the Houston Chronicle, the San Francisco Chronicle, or Popular Mechanics websites, you’ll find this language, screamed in all-caps: “YOU MAY NOT ACCESS OR USE THE COVERED SITES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.” In the DOJ’s world, this means anyone under 18 who reads a Hearst newspaper online could hypothetically face jail time. But Hearst’s publications aren’t the only ones with overly restrictive usage terms. U-T San Diego and the Miami Herald have similar policies. Even NPR is guilty, saying teenagers can’t access their “services” (including the site, NPR podcasts and the media player) without a permission slip… …Some sites must have recognized the problem and crafted their policies to only forbid users under the age of 13. These include the New York Times, the Boston Globe, and the Arizona Republic. NBCNews.com uses this wording: “By using or attempting to use the Site or Services, you certify that you are at least 13 years of age or other required greater age for certain features and meet any other eligibility and residency requirements of the Site.” This means that inquisitive 12-year-olds who visit NBCNews.com to learn about current events would be, by default, misrepresenting their ages. That’s criminal by DOJ standards and would be explicitly illegal under the House Judiciary Committee’s proposal. We’d like to say that we’re being facetious, but, unfortunately, the Justice Department has already demonstrated its willingness to pursue [Computer Fraud and Abuse Act] to absurd extremes. Luckily, the Ninth Circuit rejected the government’s arguments, concluding that, under such an ruling, millions of unsuspecting citizens would suddenly find themselves on the wrong side of the law. As Judge Alex Kozinski so aptly wrote: “Under the government’s proposed interpretation of the CFAA…describing yourself as ‘tall, dark and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit.” Image: Screenshot from a Twitter post by the New York Times’ Binyamin Appelbaum. H/T: Jim Romenesko.

Under 18? Then It’s a Criminal Offense for You To Read Some News Sites

Via the Electronic Frontier Foundation:

As we’ve explained previously, in multiple cases the [Department of Justice] has taken the position that a violation of a website’s Terms of Service or an employer’s Terms of Use policy can be treated as a criminal act. And the House Judiciary Committee has floated a proposal that makes the DOJ’s position law, making it a crime to access a website for any “impermissible purpose.” For a number of reasons, including the requirements of the Children’s Online Privacy Protection Act, many news sites have terms of service that prohibit minors from using their interactive services and sometimes even visiting their websites.

Take, for example, the Hearst Corporation’s family of publications. If you read the terms of use for the Houston Chronicle, the San Francisco Chronicle, or Popular Mechanics websites, you’ll find this language, screamed in all-caps:

“YOU MAY NOT ACCESS OR USE THE COVERED SITES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.”

In the DOJ’s world, this means anyone under 18 who reads a Hearst newspaper online could hypothetically face jail time. But Hearst’s publications aren’t the only ones with overly restrictive usage terms. U-T San Diego and the Miami Herald have similar policies. Even NPR is guilty, saying teenagers can’t access their “services” (including the site, NPR podcasts and the media player) without a permission slip…

…Some sites must have recognized the problem and crafted their policies to only forbid users under the age of 13. These include the New York Times, the Boston Globe, and the Arizona Republic. NBCNews.com uses this wording:

“By using or attempting to use the Site or Services, you certify that you are at least 13 years of age or other required greater age for certain features and meet any other eligibility and residency requirements of the Site.”

This means that inquisitive 12-year-olds who visit NBCNews.com to learn about current events would be, by default, misrepresenting their ages. That’s criminal by DOJ standards and would be explicitly illegal under the House Judiciary Committee’s proposal.

We’d like to say that we’re being facetious, but, unfortunately, the Justice Department has already demonstrated its willingness to pursue [Computer Fraud and Abuse Act] to absurd extremes. Luckily, the Ninth Circuit rejected the government’s arguments, concluding that, under such an ruling, millions of unsuspecting citizens would suddenly find themselves on the wrong side of the law. As Judge Alex Kozinski so aptly wrote: “Under the government’s proposed interpretation of the CFAA…describing yourself as ‘tall, dark and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit.”

Image: Screenshot from a Twitter post by the New York Times’ Binyamin Appelbaum.

H/T: Jim Romenesko.

At a young age you can have more influence than at any time in journalistic history and the mistakes you make at a younger age are more visible than ever before.

Sree Sreenivasan, Chief Digital Officer, Columbia University, to the New York Times about last week’s indictment of Matthew Keys. The 26-year-old deputy social media editor at Reuters was charged by federal prosecutors with assisting members of Anonymous in defacing a 2010 Los Angeles Times story. Under the Computer Fraud and Abuse Act, Keys could face fines of up to $750,000 and 25 years in prison.

New York Times, Hacker Case Leads to Calls for Better Law.

The hackers changed the headline of a Times story from “Pressure Builds in House to Pass Tax-Cut Package” to “Pressure Builds in House to Elect CHIPPY 1337.”

Reuters' Matthew Keys indicted on conspiracy charges related to the hacker group Anonymous

shortformblog:

Matthew Keys, a deputy social media editor at Thomson Reuters, has been charged in an indictment for allegedly conspiring with members of the hacker group “Anonymous” to hack into a Tribune Company website, the Justice Department announced today.

Keys, a former web producer for the Tribune Co-owned television station KTXL FOX 40, in Sacramento, Calif., was charged with providing members of the group with log-in credentials for a computer server belonging to the Tribune Co., according to the DoJ’s press release.

SFB: In case you’d like to read the indictment, here it is.

Quick statement: Matt’s a good friend, and we’ve worked closely together for a couple of years, bouncing ideas off of one another and the whole bit. I talked to him three hours ago. We had no knowledge of this situation, and offer no other statement other than to hope that one of our favorite people is OK. Good luck, Matt. — Ernie @ SFB

FJP: Definitely good luck. One of our favorites.

Leaked Audio of Bradley Manning Statement Released by Freedom of the Press Foundation

Via the Foundation:

Today, Freedom of the Press Foundation is publishing the full, previously unreleased audio recording of Private First Class Bradley Manning’s speech to the military court in Ft. Meade about his motivations for leaking over 700,000 government documents to WikiLeaks. In addition, we have published highlights from Manning’s statement to the court.

While unofficial transcripts of this statement are available, this marks the first time the American public has heard the actual voice of Manning.

He explains to the military court in his own cadence and words how and why he gave the Apache helicopter video, Afghanistan and Iraq Wars Logs, and the State Department Diplomatic Cables to WikiLeaks. Manning explains his motives, noting how he believed the documents showed deep wrongdoing by the government and how he hoped that the release would “spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.” In conjunction with the statement, Private First Class Manning also pleaded guilty to 10 of the 22 charges against him.

How the Bradley Manning Case Endangers Journalism

Harvard Law professor Yochai Benkler begins a recent New Republic article like so:

After 1,000 days in pretrial detention, Private Bradley Manning yesterday offered a modified guilty plea for passing classified materials to WikiLeaks. But his case is far from over—not for Manning, and not for the rest of the country. To understand what is still at stake, consider an exchange that took place in a military courtroom in Maryland in January.

The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?

The prosecutor’s answer was simple: “Yes Ma’am.”

This last line, the simple, “Yes, Ma’am,” is important.

It’s not that Manning leaked to WikiLeaks the government is saying. It’s that he leaked at all. More specifically, in the government’s view, the act of leaking is “aiding the enemy,” and it is those charges — a capital offense, although the prosecution says they will not seek the death penalty — that it looks like they are going to pursue.

As GigaOm’s Matthew Ingram points out:

[I]f Manning is found guilty of “aiding the enemy” for releasing classified documents to WikiLeaks, it could change the nature of both journalism and free speech forever.

Why? Because as Benkler points out, the charge for which Manning is being court-martialed could just as easily be applied to someone who leaks similar documents to virtually any media outlet, including the New York Times or the Washington Post. In other words, if the U.S. government has seen fit to go after Manning and WikiLeaks, what is to stop them from pursuing anyone who leaks documents, and any media entity that publishes them?

And, as Benkler, who’s an expert witness on the case, further explains:

[T]hat “Yes Ma’am” does something else: It makes the Manning prosecution a clear and present danger to journalism in the national security arena. The guilty plea Manning offered could subject him to twenty years in prison—more than enough to deter future whistleblowers. But the prosecutors seem bent on using this case to push a novel and aggressive interpretation of the law that would arm the government with a much bigger stick to prosecute vaguely-defined national security leaks, a big stick that could threaten not just members of the military, but civilians too…

…The prosecution case seems designed, quite simply, to terrorize future national security whistleblowers. The charges against Manning are different from those that have been brought against other whistleblowers. “Aiding the enemy” is punishable by death. And although the prosecutors in this case are not seeking the death penalty against Manning, the precedent they are seeking to establish does not depend on the penalty. It establishes the act as a capital offense, regardless of whether prosecutors in their discretion decide to seek the death penalty in any particular case.

Chilling, indeed. As Ingram sums up:

Benkler’s warning shouldn’t be taken lightly: if Manning is guilty of aiding the enemy for simply leaking documents, then anyone who communicates with a newspaper could be guilty of something similar. And if the leaker is guilty, then the publisher could be as well — and that could cause a chilling effect on the media that would change the nature of public journalism forever.

Yochai Benkler, The New Republic. The Dangerous Logic of the Bradley Manning Case.

Mathew Ingram, paidContent. If Bradley Manning and WikiLeaks are guilty, then so is the New York Times.

When the FBI Responds to an ACLU Freedom of Information Act Request

Via the ACLU:

Two key memos outlining the Justice Department’s views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions…

…The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking—possibly for months at a time—or whether the government will first get a warrant. This is yet another example of secret surveillance policies—like the Justice Department’s secret opinions about the Patriot Act’s Section 215—that simply should not exist in a democratic society. Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?

More background via Ars Technica:

Back in August 2012, we reported on how the American Civil Liberties Union was compelling the FBI to fully disclose how it interprets the results of the United States v. Jones case—a unanimous Supreme Court decision establishing that law enforcement does not have the authority to put a warrantless GPS tracker on a suspect’s car.

As we reported then, other types of high-tech surveillance and monitoring by law enforcement continue on a nearly daily basis around the country. Cops are using everything from tap and trace, ping data, license plate surveillance, and other techniques as a way to keep tabs on suspects and innocent citizens without going through the threshold of a judicially reviewed probable-cause-driven warrant.

Now, the ACLU has received a response to its query—with nothing. The FBI sent the ACLU back pages (PDF) upon pages (PDF) that are heavily redacted, providing zero insight into what this policy actually is.

Images: First five pages of an FBI memorandum obtained by the ACLU via a FOIA request that outlines the agency’s post United States v Jones Supreme Court decision guidelines. Fifty-four pages of the the 57-page memo are fully redacted. (PDF)