July 2008

Great Moments in Government Accountability

by Tim Lee on July 8, 2008 · 7 comments

From pp. 141-143 of The FBI and American Democracy:

For inexplicable reasons, [John Malone, head of the FBI’s New York Field Office in the 1960s], had not complied with the record destruction requirements of the Do Not File procedure. His failure to do so preserved a massive file (amounting to twenty-seven volumes) that documented the number and targets of break-ins conducted by New York agents, identified the agents participating, and contained the specific records of the targeted individuals or organizations that agents had photographed…

Because the Malone file confirmed that, in 1972 and 1973, New York agents had conducted break-ins during an investigation of the Weather Underground activists, a practice that fell within the five-year statute of limitations, Justice Department officials accordingly instituted a criminal inquiry that led to the indictment of John Kearney, the FBI supervisor who headed the New York break-in squad (identifiable from the Malone records). FBI agents nationwide bitterly criticized Kearney’s indictment, protesting that he had been following worders. Further investigation led to the May 1977 discovery of thirteen break-in authorization memoranda at FBI headquarters. Consequently, in April 1978, Justice Department officials dropped the Kearney incitment and indicted, instead, former Acting FBI Director L. Patrick Gray III, former FBI Associate Director W. Mark Felt [AKA “Deep Throat”], and former FBI Assistant Director Edward Miller for having authorized illegal practices. Gray subsequently succeeded in having his trial severed from that of Felt and Miller, arguing that he had been misled and had no knowledge of the Weather Underground break-ins. Conceding the weakness of their case against Gray, Justice Department officials dropped the crimnal charges against him in December 1980. Felt and Miller were convicted. But President Ronald Reagan pardoned them on March 26, 1981, on the grounds that “they acted not with criminal intent, but in the belief that they had grants of authority reaching to the highest levels of government.”

Is it too much to hope that history repeats itself when President Obama takes office? Minus the pardon, preferably.

7 comments

Google vs. Google

by Ryan Radia on July 8, 2008 · 10 comments

Google has found itself stuck between a rock and a hard place in its legal battle with Viacom over the question of whether IP addresses constitute “personally identifiable information,” as Jim pointed out yesterday. It’s worth noting, however, that EU regulators have left Google little choice but to stake out uncharted territory in order to defend its data collection practices.

Under the European Union’s strict privacy directive, websites are prohibited from retaining “personal data” for more than six months. What exactly constitutes personal data is up for debate. Google, which retains IP addresses for 18 months, has taken the position that IP addresses don’t constitute personal data and therefore are not subject to EU data retention limits.

That argument has placed Google in a double-bind in its legal proceedings with Viacom. In his recent ruling, Judge Stanton specifically referenced Google’s recent blog post which argued that IP addresses should not be considered personally identifiable information. If IP addresses aren’t private, Stanton reasoned, then what’s the harm in Google handing them over to Viacom?

Whether an IP address can identify an individual is a matter of context. Google stated recently, “Based on our own analysis, we believe that whether or not an IP address is personal data depends on how the data is being used.” That makes sense; an IP address alone is generally not enough information to identify an individual, absent a court order.

Yet while IP addresses are not capable of overtly identifying individuals in the same way as phone numbers and addresses, IP addresses combined with other details often make it possible to positively identify individuals with a high degree of accuracy. Anybody can run a reverse DNS lookup on an IP address, which usually reveals the city and state in which the user of that IP address is located, along with the service provider. The YouTube logs that Google has been ordered to produce include not just IP addresses but also usernames and specific viewing times, so it’s all but guaranteed that quite a few individuals could be personally identified given enough man-hours of data mining.

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The FBI and Politics

by Tim Lee on July 8, 2008 · 13 comments

More fun stuff from page 100 of the Theoharis boo:

FBI officials were interested in the sexual indiscretions of elected memebrs of Congress. FBI agents were specifically encouraged to report and record any such discoveries and to do so discreetly. During an interview with the so-called Pike Committee in 1975, a former FBI agent described this practice. Puzzled over why such information was being collected, the agent claimed to have consulted his boss, FBI Assistant Director Cartha DeLoach. He then recounted DeLoach’s response: “The other night we picked up a situation where the Senator was seen drunk, in a hit-and-run accident, and some good-looking broad was with him. He [DeLoach] said, ‘We got the information, reported it in a memorandum’ and DeLoach—and this is an exact quote—he said ‘by noon of the next day the good Senator was aware that we had the information and we never had any trouble with him on appropriations since.'”

Now, I have no evidence that today’s NSA or FBI is doing anything like this. But of course, someone in the 1960s wouldn’t have realized what the FBI was doing then, either. We certainly shouldn’t be passing legislation making this sort of thing easier to pull off and harder to uncover.

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Liberals Abandoning the First Amendment, Part 3: The Fox Case

by Adam Thierer on July 8, 2008 · 5 comments

Early in 2007, I started penning—but somehow failed to continue—a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.

Amicus briefs are starting to be filed in the matter, and you won’t be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC’s authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left—namely the Supreme Court’s 1969 Red Lion decision and FCC’s ambiguous “public interest” authority to comprehensively regulate media markets.
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Digital Transition Hysteria

by Tim Lee on July 8, 2008 · 7 comments

Ars has a write-up of a new report that claims that the transition to digital television will be a disaster, and that the government needs to spend still more money to ease the transition process. The whole thing is just silly. The government is providing two free converter boxes to every household. If someone is too oblivious to apply for a converter box in the months leading up to the transition, I can only assume there will be lots of discussion of it on their televisions the week or two before the transition. And if that doesn’t convince them to get a converter box, surely they’ll figure it out the day their TV stops working.

I’m sorry, but going for a few days with no television just isn’t an emergency. I suppose it’s remotely possible that a natural disaster will hit the day after the transition and somebody won’t be warned because they didn’t have their converter box installed. But this is frankly quite a reach. People don’t have access to TV for all sorts of reasons. I rarely turn mine on because I’ve got better things to do with my time. That doesn’t constitute an emergency.

It warms my heart to see common sense prevailing among Ars’s commenters. As Ars reader brownd4 puts it, “If people aren’t smart enough to know about this ahead of time, they’ll do something about it when their TVs go dark. Not a big deal.”

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Our Continued Wishful Thinking about “Media Localism”

by Adam Thierer on July 7, 2008 · 27 comments

There’s an interesting discussion going on over at Editor & Publisher in which E&P columnist Steve Outing and Mark Potts of the now-defunct Backfence.com are debating media localism and recent efforts to give dying newspapers a new lease on life by focusing on the “hyper-local” coverage and community services. Potts obviously didn’t take too kindly to Outling saying of Backfence that: “We know from its experience that relying too heavily on non-paid citizen contributors isn’t a winning strategy.” And that the: “content is often of low quality and boring, and dull just doesn’t fly in the hyper-competitive Web environment. In response, Potts suggests that other factors were responsible for the site’s demise and that hyper-localism and user-generated local content is the future of the industry:

It’s also unfair to suggest that hyperlocal content is “of low quality and boring,” as Steve does in his column. Low quality? To a professional editor, maybe, but the fact is that most participants in user-generated sites can communicate very well. It may not be “journalism,” but it’s still quite readable and interesting. And “boring” is in the eye of the beholder. To an outsider, any hyperlocal information is probably boring. It may be to a transient resident, too. But to someone with a stake in the community, kids in the schools, paying taxes, dealing with community services, patronizing local merchants, etc., those arcane town council meetings, zoning disputes, tips on finding good pizza and kids’ sports scores are incredibly important — more so than just about anything a lot of us think of as journalism.

I think they both make some interesting points, [and there is a running exchange going here] but I want to add a few other frequently overlooked points about the whole “media localism” debate, which continues to stir up so much controversy within the industry and especially here in Washington policy circles. There are two fundamental realities about “localism” that few industry analysts or media critics bother discussing that I want to focus on:
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27 comments

The More Things Change…

by Tim Lee on July 7, 2008 · 5 comments

I’m boning up on the history of the FBI, reading Athan Theoharis’s The FBI and American Democracy. So far, I’ve gotten from the FBI’s inception (100 years ago this month) to midcentury. The most remarkable thing about it is how familiar it all seems. As Theoharis tells the story, the FBI has, from its inception, pushed for ever broader authority to spy on Americans. During the first half of the 20th century, it pushed relentlessly for broader statutory authority. When Congress would not give it the authority it wanted, it sought authorization from senior executive branch officials for authorization to break the law. If authorization wasn’t fortcoming, the bureau would often do what it wanted anyway and not tell its nominal superiors of its activities.

A few illustrative anecdotes:

In 1937 and 1939, the Supreme Court ruled that wiretapping was illegal under the 1934 Communications Act. President Roosevelt responded in 1940 with a “secret directive authorizing FBI wiretaps during ‘national defense’ investigations. The president privately reasoned that the Court’s rulings governed only criminal cases.” Roosevelt required the FBI to seek specific authorization from the attorney general for each wiretap, but the FBI found this requirement too onerous, and “installed wiretaps without the attorney general’s advance approval” on at least 17 occasions.

In 1954, the Supreme Court held that trespassing in order to install bugs violated the Fourth Amendment. The FBI asked the attorney general for authorization to ignore the ruling and continue illegally bugging peoples’ homes, but the attorney general sought plausible deniability, writing that he “would be in a much better position to defend the Bureau in the event that there should be a technical trespass if he had not heretofore approved it.” The FBI continued bugging, without bothering its nominal superiors with the details.
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“J. Edgar Google”

by Jim Harper on July 7, 2008 · 18 comments

Too funny. Anti-Google gadfly Scott Cleland has coined a hilarious new name for the company to highlight his privacy concerns with the search giant and its business practices. My chief concern now is . . . Which executive do we suspect of being a cross-dresser?

Cleland has a point. Foremost, I think, the judge that ordered Google to disclose a great mass of YouTube viewer information is being cavalier with the legitimate privacy concerns in a data-dump that big. I don’t share Berin’s confidence that a protective order will control access to, and uses of, this information. Data is so, so volatile.

But the judge is in a position to rule like this because Google collects and keeps so much information.

I have complimented Google on good practices in the past, but the modesty of the steps it has taken to protect user privacy is showing. At the time, their niggardly protective efforts forced them to try importing shades of gray into a circumstance that is black or white: They said their logs were “much more anonymous” than before, rather than flatly anonymous.

Well, they’re ‘not very anonymous’ if they have IP addresses and usernames in them, are they. But Google also boxed itself into a corner by arguing elsewhere that IP addresses aren’t really personally identifiable information.

“We . . . are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot.” (‘Sure, we love the heavy regulatory regime you’ve got going because we love privacy, but let’s not include IP addresses, mkay?’)

The modesty of its protective steps, and the company’s go-along get-along approach to regulators in Europe (+ would-be Europeans here in the States), are coming home to roost. Instead of taking great strides to protect privacy and telling regulators to just back off, Google has taken small steps and tripped over its shoelaces.

‘J. Edgar Google’ has created the circumstances in which a judge can require them to hand over lots of personally identifiable user data. It’s a situation in which few people believe they will be protected.

18 comments

Evolving Theory of Network Effects

by Hance Haney on July 7, 2008 · 18 comments

Should antitrust enforcers be concerned about entry barriers in the search ad market? Some believe the market exhibits “network effects,” according to the New York Times.

Although traditionally applied to Industrial Age industries with high fixed costs like railroads and telephone exchanges, anything now exhibits a network effect if its value increases because more people use it. Network effects are “everywhere,” according to a top former antitrust official. Coke and Pepsi drinkers, for example, “benefit from the network of their fellow consumers because Coke and Pepsi are widely available in restaurants and in vending machines,” claims Timothy J. Muris.

A preexisting network of vending machines is admittedly tough for soft drink imitators to replicate. But a barrier to imitation can also be viewed as a spur to innovation because it acts as a reward which inspires creators and investors. Not an incentive to create a barely distinguishable alternative, to be sure, but to create something transformative.

The alleged network effects in search advertising are more subtle than in the case of railroads, telephone exchanges or soft drinks (in fact, they even bear a striking resemblance to what one might also term legitimate and hard-won competitive advantages).
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