For the Love of Christ, no, “AP”‘s records weren’t seized.

Nob Akimoto

Nob Akimoto

Nob Akimoto is a policy analyst and part-time dungeon master. When not talking endlessly about matters of public policy, he is a dungeon master on the NWN World of Avlis

Related Post Roulette

19 Responses

  1. Avatar Ethan Gach says:

    “I’m not seeing a lot of room for them to go around claiming victimhood and demanding special exceptions carved out for THEM and THEM ONLY on the issue of digital privacy rights. It’s nauseatingly hypocritical.”

    It may or may not be relevant to remark that press institutions like the AP are precisely special exceptions when it comes to privacy and freedom of information.Report

    • Nob Akimoto Nob Akimoto says:

      I don’t see a clause in the 4th amendment saying that not only are unreasonable searches and seizures bad, but all press organs should automatically receive a free pass on even reasonable searches and seizures.

      Do you?

      I sincerely dislike this notion that corporations should get special rights that PEOPLE don’ t even get because they’re a certain type of corporation.

      That is to say, the data gathering and collation that goes on which leads to a lack of reasonable expectation of privacy for most citizens either needs to be stopped entirely, or we need to classify that data as being something that people have a reasonable expectation of privacy about and thus require heightened judicial scrutiny over the present reality of pen register and other data mining based surveillance.Report

    • Nob Akimoto Nob Akimoto says:

      In general I’m extremely wary of legislation that will put into law the dual system of privacy rights between media organizations and people. Particularly when media organizations themselves are known to engage in dubious uses of privately collected data for their own benefit.Report

    • Avatar Ethan Gach says:

      Perhaps I’m wrong, but my understanding is that what smells about this is the unnecessary breadth of the data the government gathered and the detrimental effect this specifically will have on the AP’s efforts to gather info and contact sources who wish to remain anonymous.

      That’s the issue, correct?Report

      • Nob Akimoto Nob Akimoto says:

        It seems to me, that the part people are fixating on are the fact that the records were pubpoenaed in the first place. This stems from the fact that the media portrayal is that the government somehow “raided” the AP’s own data, rather than asking for phone records kept by the telephone companies proving their services. You can see a lot of conflation with this data analysis with wiretapping, which suggests at least the simple fact that a press organization, specifically the AP had to undergo any scrutiny and have information about them taken to the Feds over their sourcing is evidently their beef.

        The cries that this is somehow a First Amendment issue, which has a complicated history with regard to putting distinctions between actively suppressing publication of information versus trying to find out their sources. While shield laws can protect you from divulging sources of classified information, it does not extent to providing blanket assumption that any data associated with you should be consider shielded. It’s a semantic difference, but one that’s easier to do now that there’s so many easy methods of tracking people or data flows. We’re not talking about the DOJ going and subpoenaing actual documents associated with the case (would likely remove a court order for that) versus looking for the content of the emails.

        This is a structural issue, not a rights infringement issue. And using statutes that shield journalists will be a good way to drive a wedge between journalists and privacy activists.

        Speaking simply for their practices, the government would essentially be incapable of conducting traffic analysis if the communicators use things like disposable cell phones (removed after each use), IP anonymizers and the like.

        My assertion on the other hand is that the true issue is the extent to which data is gathered by private entities and the way statutory and judicial precedent have set things up, this data collection is much easier for the government to subpoena data from compared to traditional content searches. Traffic analysis is also used rather extensively for things like online advertisement. In all these cases there are insufficient protections for individuals whereas corporations get blanket immunity from prosecution for sharing your records under subpoena, or are allowed to push all sorts of fees and conditions for keeping track of your information.

        This is the more problematic aspect of the story.Report

      • Avatar Morat20 says:

        Actually, nothing seems to “smell” about it except that “the press” (IE: Important People) was the target and the search was one that didn’t require a warrant.

        Not because of Super Secret FISA court warrant no one saw, not even “unprecedented move by the President” — this sort of thing is routine.

        The AP is acting like they were illegally wiretapped when all that was done was the phone company was asked for call logs for like six people, something they do dozens of a times a day. And then told the AP they did it — as per the law.

        The AP, of course, feels this is an egregious violation of their sacred status as “press” (but okay for the masses, of course. It’s not like the AP has really cared that this is done all the time), and are feeling horribly violated at being treated like some peon.

        The GOP, of course, is just happy to have a scandal to scream about. A scandal, of course, over actions they didn’t care about before and are a direct result of hassling Holder to investigate all these leaks.

        (Do keep in mind, as the GOP screams, that just two months ago the GOP talking point was that the White House was deliberately leaking exactly this sort of information — on successful terrorist preventions — to make themselves look better, even if it endangered sources. They demanded investigations. And now? Now they’re screaming about the fact that investigations involve investigating).

        Honest to god, the ONLY people to whom this is anything more than a purely political or PR bit of theater to are the people who gave a crap about pen registry searches beforehand. And none of those people are the ones getting attention, because they’re filthy hippies or libertarians or something.

        Me? I sorta give a crap about it — although pen registry stuff bothers me a lot less than Super Secret FISA warrants or a lot of the internet level warrantless seizures that capture a lot more data than a phone log — but the sheer hypocrisy and blatant elitism of the current mess make it really hard for me to care.

        Also, the fact that the AP really is acting like they got wiretapped and are under some sort of ‘threat of investigation’. *eyeroll*. They didn’t come badger the AP for their sources, didn’t drag them before a Grand Jury to ask them under oath, they grabbed phone records to see if they could match up some calls to people who might have leaked it.

        That’s the KID GLOVES approach to leak investigation, which they got purely because they’re “important people”.Report

  2. Avatar RTod says:

    Small thing; punctuation of this post suggests every single AP record was seized.Report

  3. Avatar zic says:

    Thank you, Nob.

    This is a complicated web of problems.

    First, is the vast amount of information being collected; you seem to be on a roll there, and I applaud you for that. But you are correct, the phone records belong to the telephone company, not the AP, and that third-party involvement would be the place where ‘privacy’ vanishes.

    What I don’t hear enough about is the AP’s actions publishing that story. If what we’ve been told has any grain of truth at its root, the foiled plane bombing was part of a larger investigation into active acts of terrorism in a troubled part of the world. There’s no doubt that such information is and should be classified. Now I’ll be the first to say there’s too much information classified. But that doesn’t mean that there’s no need for secrecy. If anything, classifying too much information degrades the importance of ‘secret,’ and something like this is often the result. Why was publishing the story wrong? Well, it put lives at risk. And probably not the lives of CIA agents on the ground in Yemen, but the lives of people who live in Yemen, who were talking to those agents. This is, in my mind, one of those cases where we only think of American lives having value. The risks were likely being bourn by non-Americans. Men and women literally fearing having their throats slit.

    So we end up with this perfect shit storm: reporters not really appreciating what ‘classified’ means because they come across so much bs that obviously has no need of being classified, too much information collected about everyone, the overwhelming urge to publish first, the political advantages of leaking someone leaking, and the presses megaphone about its rights, which I simply don’t believe are any different from your rights or mine.

    I do have great concern that the government can go in and subpoena everything related to a news organization; that will have a dampening effect. But if you knew anything about how these things work, you were already aware of that risk. I was, and ever reporter who took their work seriously was, too. I’ve family who work in military intelligence, they know the risks, too. Having a political conversation at the holiday table with them can be quite comical because of the places they simply don’t say stuff.

    But there has to be some accountability in the press for publishing pieces that simply shouldn’t be published at the time, pieces that put those non-American lives at risk of throat slitting. We are often ugly Americans and loose sight of that.Report

    • Avatar zic says:

      Just to reinforce the point that the reason for investigating the leak is the danger to non-American sources:
      http://blogs.reuters.com/jackshafer/2013/05/16/why-the-underwear-bomber-leak-infuriated-the-obama-administration/

      To begin with, the perpetrators of a successful double-agent operation against al Qaeda in the Arabian Peninsula would not want to brag about their coup for years. Presumably, al Qaeda in the Arabian Peninsula will now use the press reports to walk the dog back to determine whose misplaced trust allowed the agent to penetrate it. That will make the next operation more difficult. Other intelligence operations — and we can assume they are up and running — may also become compromised as the press reports give al Qaeda in the Arabian Peninsula new clues.

      Likewise, the next time the CIA or foreign intelligence agency tries to recruit a double agent, the candidate will judge his handlers wretched secret keepers, regard the assignment a death mission and seek employment elsewhere.

      Last, the leaks of information — including those from the lips of Brennan, Clarke and King — signal to potential allies that America can’t be trusted with secrets. “Leaks related to national security can put people at risk,” as Obama put it today in a news conference.

      Worth a read.Report

    • Avatar Kimsie says:

      Meanwhile, Israel slices the throats of their own allies.
      The truth, it hurts.Report

  4. Avatar Jaybird says:

    George W Bush was a doggone visionary.Report

  5. Avatar Shelley says:

    Sigh, ditto. I had never thought of the corporate angle of this issue. Is there any piece of pie left in this culture that a corporate finger hasn’t claimed as its own and infected?

    I had heard that the AP was going to release whatever information they had only when they found out that the government was going to release it the next day anyway. But I don’t know for sure….

    So tired of corporate power. Government, literature, journalism….nobody is keeping up with it. It’s so hard to visualize.Report

  6. Avatar Gordon Danning says:

    “Given that large media organizations themselves are known to access pen register data or even hack phone records and emails of private citizens, I’m not seeing a lot of room for them to go around claiming victimhood[.]”

    Well, the distinction is that large media organizations are not agents of the state. Moreover, IF the DOJ violated the Fourth Amendment, then that is wrong, regardless of whether AP or anyone else acted in a similar manner, or even in a worse manner. The government must obey the law. I don’t think that is a controversial proposition.Report

    • Nob Akimoto Nob Akimoto says:

      The DOJ didn’t break the law according to both Supreme Court precedent (Smith v. Maryland) and according to the very laws that Congress passed a result of that ruling. In fact, it was in obeying the law that they got

      And I’m saying the very basis of the law (that electronic records of communications between yourself and someone with a third party interlocuter doing the routing has no reasonable protection under the 4th amendment) is flawed and is seriously messed up, requiring fixing.

      Basically the point is 3 fold, and I seem to be having to say this over, and over, and over again:
      1. The precedent and law on this matter is very clear. So is the statutory restrictions. The DOJ went by the book. If Congress is actually outraged, why the hell haven’t they fixed the Patriot Act provisions that THEY authorized and KEEP authorizing for the last 10 fucking years.
      2. Carving out a special exemption to a nebulous “press organization” while ignoring the privacy threat that this sort of record keeping in general presents is problematic, and would just further continue this bifurcated approach to privacy rights that already exists and privileges snail mail and phone conversations over things like your right to not have people know who you’re talking to.
      3. The press’s attitude toward this is hypocritical and completely distorts the discussion we should be having about privacy. It’s essentially “privacy for me, but not for thee”. Yet they have the gall to dress it up as some sort of huge attack on press freedoms. It’s not.Report

      • Avatar Gordon Danning says:

        That really doesn’t address my point. I specifically took issue with your claim that the media companies cannot complain, because they do the same thing. That’s why I said, “if” the DOJ violated the law.

        So, if you want to argue that this sort of thing should be illegal for both the DOJ and for private parties, fine. But your “hypocrisy” argument doesn’t really wash, because there are lots of things that private persons can do that the government cannot do, and that is a good thing, because the threat posed by unrestrained government power is vastly greater than that posed by private actors.Report

        • Nob Akimoto Nob Akimoto says:

          My point is two fold on the hypocrisy argument:
          1. The media loves to access private, confidential records with no authorization and often against various laws. They will scream to the high heavens that this is part of their sacred duty to keep the public informed about whether or not Scarlet Johannsen had nude pictures in her phone or not and will go to great lengths to cover up any charges of things like phone hacking.

          2. They love to turn around and scream bloody murder and tyranny when someone investigates them for any sort of malfeasance, especially toward data access even if perfectly legal.

          Essentially the media position is: “privacy rights are open to public interest scrutiny unless it’s our privacy in which case it needs to be absolute and protected by statute”.

          That sounds to me like the textbook definition of hypocrisy.Report

          • Avatar zic says:

            Here, there could also be a point 3, publishing of classified information in violation of the law, with the expectation that there is no consequence because they are ‘the media,’ working in the public interest.Report

            • Avatar Gordon Danning says:

              You still are not addressing my point, which is that different rules apply to the government and to media in this country. If AP argues that, under the rules, they can post nude pics of Scarlett Johanssen, but that, under the very different rules that apply to the government, what the DOJ did is not permitted, then that is not hypocrisy, because the rules are not the same. (Whether the AP’s arguments are legally correct is another matter, of course).

              And, I would note that there is a very good reason to have two sets of rules: Authoritarian governments always try to harass the press (as well as the press’s sources), but they do not publish nude photos of celebrities. And, media companies do not have the coercive power of the state, so there is less danger in giving them freer rein.

              PS: Besides, “they are hypocrites” is a very poor argument, since it is essentially ad hominem. The statement, “Stalin was a criminal” is not made any less true by pointing out that the statement was made by Pol Pot.Report

              • Nob Akimoto Nob Akimoto says:

                We’re going a little back and forth, but let me say this again. The AP is complaining about a perfectly legal thing that they have both constitutional AND statutory authority to do. Meanwhile at the same time the similar media commentators tend to claim that the law doesn’t apply to them, and they should be given widespread exemptions to laws that everyone have to follow.

                Hypocrisy may not be the key thing here, but it’s part of the argument that the media is taking this as a reason to cry up their own privilege, rather than look at the overall privacy regime which is increasingly hostile to private individuals versus large private corporations.

                The question here that zic and I are trying to bring up as the primary problem isn’t one against government coercion against private parties, but the gathering of data by private entities that can be used both by private actors and government without being supported by privacy laws.Report