from PC Magazine, 2013-Nov-7, by Stephanie Mlot:
Fla. pastor arrested as he prepped to burn QuransMULBERRY, Florida (AP) — Law enforcement arrested a Florida pastor Wednesday as he drove to a park to light nearly 3,000 Qurans on fire to protest the 2001 terrorist attacks.
Sheriff's deputies arrested Pastor Terry Jones, 61, and his associate pastor, Marvin Sapp Jr., 34, on felony charges as he drove a pickup truck towing a large barbecue-style grill filled with Qurans soaked in kerosene. He had said he was heading to a nearby park to burn 2,998 Qurans — one for every victim of the Sept. 11, 2001, terrorist attacks. Sheriff's officials said they would hold a news conference later Wednesday to discuss specific charges.
Mulberry's mayor, along with area elected officials, a sheriff's deputy and several Polk County residents have talked about the need to express love and tolerance for all faiths on Sept. 11.
Jones is the pastor of a small evangelical Christian church. He first gained attention in 2010 when he planned to burn a Quran on 9/11, although he eventually called it off. His congregation did burn the Muslim holy book in March 2011 and last year he promoted an anti-Muslim film. All three incidents sparked violence in the Middle East and Afghanistan.
The most violent protest happened after the 2011 Quran burning as hundreds of protesters stormed a U.N. compound in Mazar-i-Sharif in northern Afghanistan, killing seven foreigners, including four Nepalese guards.
Jones has repeatedly ignored pleas from the U.S. military asking him not to stage his protests. Military officials say his actions put American and Western troops in Afghanistan and elsewhere in danger.
Mulberry is a town of about 3,000 between Orlando and Tampa and has no connection to Jones' church, which recently moved out of its Gainesville building.
An Egyptian court convicted Jones, along with seven Egyptian Coptic Christians in absentia, sentencing them to death on charges linked to the film. The ruling was seen as largely symbolic because Jones and the other defendants live outside of Egypt.
Just last week, a federal judge in Michigan issued a summary judgment in favor of Jones and his organization, Stand Up America Now, against the city of Dearborn for requiring Jones and his organization to sign a city-issued agreement in order to speak on public property in front of a Dearborn mosque in 2012.
Earlier Wednesday, about 75 people gathered In Mulberry for an interfaith prayer service to counter Jones' actions.
Mike Ghouse, who has organized a 9/11 prayer service in his home state of Texas for nine years, brought his event to Mulberry because of Jones' planned Quran burning. He initially had planned to hold the service in Texas but teamed with a group of Mulberry residents who had organized an anti-Jones Facebook page.
"Everyone has a right to believe what they believe," said Ghouse, adding that it was Jones' right as an American to express himself. Others said that while Jones was free to say or do whatever he wanted, the people of Mulberry didn't want the world to think that the residents condone or agree with Jones' views.
"We don't buy what Jones is selling," said Polk County resident Butch Rahman.
from the Guardian, 2013-Jun-17, by Juli Zeh:
Google Ordered to Block Formula One Star's Orgy PicsA French court on Wednesday ruled that Google must remove from its search results photos of a former Formula One racing chief participating in an orgy.
Max Mosley, one-time president of the International Automobile Federation, sued Google in 2011, requesting that the company automatically filter links to a 2008 British newspaper report that included photos and a video of Mosley participating in a Nazi-themed sex party.
Mosley argued that French law prohibits the taking or distribution of images of an individual in a private space without his or her consent. But Google argued that that reasoning limits free speech.
As part of this week's settlement, the tech giant must filter nine images of Mosley from its worldwide search results, and pay him €1 in compensation. Beginning in 2014, the company will also be fined €1,000 every time a salacious photo of Mosley is found in its search engine.
Google did not immediately respond to PCMag's request for comment, but told the New York Times that it plans to appeal the decision.
"The law does not support Mr. Mosley's demand for the construction of an unprecedented new Internet censorship tool," Google Associate General Counsel Daphne Keller said in a September statement. She pointed to repeated European court rulings that found filters to be "blunt instruments that jeopardize lawful expression and undermine users' fundamental right to access information."
A filter may not even solve Mosley's problem, Keller added, explaining that pages removed from search results remain live on the Web, accessible to users by other means, like following links on social networks or navigating to a specific address in a browser.
"It's a fair decision," Clara Zerbib, a Parisian lawyer who represented Mosley, told the Times. "This case isn't about censoring information, but about complying with French law."
There is no word on just how much of a trickle-down effect this week's French court ruling will have on the tech giant, but Keller argued in September that it will leave a mark.
"This is not just a case about Google, but the entire Internet industry," she said. "Any start-up could face the same daunting and expensive obligation to build new censorship tools — despite the harm to users' fundamental rights and the ineffectiveness of such measures."
In 2008, Mosley was awarded £60,000 ($96,000) in a successful suit against England's now-defunct News of the World, which published the photos.
from McClatchy, 2013-Jul-9, updated 2013-Jul-15, by Jonathan S. Landay and Marisa Taylor:
NSA surveillance: what Germany could teach the USAt the end of the G8 meeting in Northern Ireland on Tuesday night, Barack Obama and Angela Merkel will hop on a plane bound for Berlin together. Merkel has already boasted that she will make their meeting an awkward one, promising to ask uncomfortable questions about the Prism affair. The image that comes to my mind is that of a pinscher yapping at a great dane, while the great dane just benignly gazes into the distance.
Data protection is to the communication age is what environmental protection was for the age of industrialisation. We must not leave it too late to act
Of course, the pinscher has every reason to bark its lungs out. Surveillance of worldwide internet communications, as practised by the National Security Agency (NSA) through Prism, is the stuff of Orwellian nightmares. Any democratic system rests on the idea that its citizens can think and act freely – but no individual can act and think freely while being watched. The very fact of being watched means that we act differently. Unsupervised communication between individuals is an essential precondition for a functioning democracy.
There will always be people who dismiss complaints about state surveillance as hysteria. Since 11 September 2001 it has become increasingly easy to discourage those who care about their fundamental rights. Just insist that a new measure will aid the fight against terrorism, and that legitimises it. Particularly in Britain and the US, many people seem surprisingly blase about the idea of the state watching over them.
I despair at such indifference. Germany endured two totalitarian systems in the 20th century. Not just Nazism, but the GDR too, built a dictatorship on the surveillance, registration and selection of individuals. People became objects who were divided into nebulous categories. The fight against terror requires a similar division of civil society according to sex, age, ethnicity, religion and politics. The problem with such machine-led screening methods is not only that it is very hard for people to escape them once they get caught, but that they no longer presume innocence – everyone is now a potential suspect.
Because of this, Germans have traditionally been more sensitive to assaults on their private sphere. There are fewer CCTV cameras, and Google's Street View project was met with widespread resistance in 2010: click yourself through a map of Germany and you'll still find large areas still pixelated. A few weeks ago, Germany published its first post-reunification census – the previous ones in the 1980s were widely boycotted on ethical grounds. But that Germany hasn't reached the level of the US is not thanks to politicians' sense of history, but to the so-called "basic law" that anchors our constitution and the federal constitutional court that protects it. One "security law" after the next has been proposed and then rejected by the court for infringing on civil rights.
But being a little more sensible on civil rights issues than other European states will no longer do. On the contrary: with its unique historical background, Germany should be leading the charge against any form of Big Brother system.
Having been raised in East Germany, Merkel especially should know what is at stake here. She experienced in her youth how long-term surveillance can demoralise the human spirit and distort the character of a society.Explaining that to her American counterpart would be a start for Merkel. She should explain to him that there is a lesson for the rest of the world in Germany's history. In the 21st century, modern technology will take the possibility for total surveillance to a completely new level. Compared with what Prism allows you to do, Stasi activities look like child's play: the size and speed of the data flow threatens to overwhelm the lawmakers who are meant to control it.
My fear is that Merkel's protest will be hard to take seriously, and that Obama will notice this. Since 9/11, Merkel's government has also passed laws that allow the state to virtually x-ray its citizens. Der Spiegel recently reported that Germany's equivalent of the NSA, the BND, is planning to expand its web monitoring programme over the next five years.
Ultimately, Merkel's emphatic concern about the Prism affair stems from the fact there will a federal election in Germany in September. It's a convenient chance to demonstrate a bit of political spine. Once the pinscher's done with the yapping, the great dane will give her a kindly smile and assure her that everything is happening within the law. After that, the excitement about Prism will soon evaporate, and they in America and we in Europe will continue collecting data.
Data protection is to the communication age what environmental protection was for the age of industrialisation. Back then, we lost decades because we didn't realise how severe the damage we were causing really was. Let's try not to make the same mistake twice.
Juli Zeh is an award-winning German novelist. Her novel Dark Matter (Harvill Secker) is longlisted for the 2011 Independent Foreign Fiction Prize
• This article was amended on Tuesday 18 June. Angela Merkel was born in Hamburg, not East Germany, as the seventh paragraph originally stated. She was raised in East Germany.
from the Wall Street Journal, 2013-May-23, printed 2013-May-24, p.A13, by Theodore J. Boutrous Jr.:
Experts: Obama's plan to predict future leakers unproven, unlikely to workWASHINGTON — In an initiative aimed at rooting out future leakers and other security violators, President Barack Obama has ordered federal employees to report suspicious actions of their colleagues based on behavioral profiling techniques that are not scientifically proven to work, according to experts and government documents.
The techniques are a key pillar of the Insider Threat Program, an unprecedented government-wide crackdown under which millions of federal bureaucrats and contractors must watch out for “high-risk persons or behaviors” among co-workers. Those who fail to report them could face penalties, including criminal charges.
Obama mandated the program in an October 2011 executive order after Army Pfc. Bradley Manning downloaded hundreds of thousands of documents from a classified computer network and gave them to WikiLeaks, the anti-government secrecy group. The order covers virtually every federal department and agency, including the Peace Corps, the Department of Education and others not directly involved in national security.
Under the program, which is being implemented with little public attention, security investigations can be launched when government employees showing “indicators of insider threat behavior” are reported by co-workers, according to previously undisclosed administration documents obtained by McClatchy. Investigations also can be triggered when “suspicious user behavior” is detected by computer network monitoring and reported to “insider threat personnel.”
Federal employees and contractors are asked to pay particular attention to the lifestyles, attitudes and behaviors – like financial troubles, odd working hours or unexplained travel – of co-workers as a way to predict whether they might do “harm to the United States.” Managers of special insider threat offices will have “regular, timely, and, if possible, electronic, access” to employees’ personnel, payroll, disciplinary and “personal contact” files, as well as records of their use of classified and unclassified computer networks, polygraph results, travel reports and financial disclosure forms.
Over the years, numerous studies of public and private workers who’ve been caught spying, leaking classified information, stealing corporate secrets or engaging in sabotage have identified psychological profiles that could offer clues to possible threats. Administration officials want government workers trained to look for such indicators and report them so the next violation can be stopped before it happens.
“In past espionage cases, we find people saw things that may have helped identify a spy, but never reported it,” said Gene Barlow, a spokesman for the Office of the National Counterintelligence Executive, which oversees government efforts to detect threats like spies and computer hackers and is helping implement the Insider Threat Program. “That is why the awareness effort of the program is to teach people not only what types of activity to report, but how to report it and why it is so important to report it.”
But even the government’s top scientific advisers have questioned these techniques. Those experts say that trying to predict future acts through behavioral monitoring is unproven and could result in illegal ethnic and racial profiling and privacy violations.
“There is no consensus in the relevant scientific community nor on the committee regarding whether any behavioral surveillance or physiological monitoring techniques are ready for use at all,” concluded a 2008 National Research Council report on detecting terrorists.
“Doing something similar about predicting future leakers seems even more speculative,” Stephen Fienberg, a professor of statistics and social science at Carnegie Mellon University in Pittsburgh and a member of the committee that wrote the report, told McClatchy.
The emphasis on individual lifestyles, attitudes and behaviors comes at a time when growing numbers of Americans must submit to extensive background checks, polygraph tests and security investigations to be hired or to keep government or federal contracting jobs. The U.S. government is one of the world’s largest employers, overseeing an ever-expanding ocean of information.
While the Insider Threat Program mandates that the nearly 5 million federal workers and contractors with clearances undergo training in recognizing suspicious behavior indicators, it allows individual departments and agencies to extend the requirement to their entire workforces, something the Army already has done.
Training should address “current and potential threats in the work and personal environment” and focus on “the importance of detecting potential insider threats by cleared employees and reporting suspected activity to insider threat personnel and other designated officials,” says one of the documents obtained by McClatchy.
The White House, the Justice Department, the Peace Corps and the departments of Health and Human Services, Homeland Security and Education refused to answer questions about the program’s implementation. Instead, they issued virtually identical email statements directing inquiries to the Office of the Director of National Intelligence, declined to comment or didn’t respond.
Caitlin Hayden, a spokeswoman for the White House National Security Council, said in her statement that the Insider Threat Program includes extra safeguards for “civil rights, civil liberties and privacy,” but she didn’t elaborate. Manning’s leaks to WikiLeaks, she added, showed that at the time protections of classified materials were “inadequate and put our nation’s security at risk.”
Reply from the National Security Council
Even so, the new effort failed to prevent former National Security Agency contractor Edward Snowden from taking top-secret documents detailing the agency’s domestic and international communications monitoring programs and leaking them to The Guardian and The Washington Post newspapers.
The initiative goes beyond classified information leaks. It includes as insider threats “damage to the United States through espionage, terrorism, unauthorized disclosure of national security information or through the loss or degradation of departmental resources or capabilities,” according to a document setting “Minimum Standards for Executive Branch Insider Threat Programs.”
McClatchy obtained a copy of the document, which was produced by an Insider Threat Task Force that was set up under Obama’s order and is headed by Director of National Intelligence James Clapper and Attorney General Eric Holder. McClatchy also obtained the group’s final policy guidance. The White House, the Justice Department and the Office of the Director of National Intelligence declined requests for both documents, neither of which is classified.
Although agencies and departments are still setting up their programs, some employees already are being urged to watch co-workers for “indicators” that include stress, divorce and financial problems.
When asked about the ineffectiveness of behavior profiling, Barlow said the policy “does not mandate” that employees report behavior indicators.
“It simply educates employees about basic activities or behavior that might suggest a person is up to improper activity,” he said.
“These do not require special talents. If you see someone reading classified documents they should not be reading, especially if this happens multiple times and the person appears nervous that you saw him, that is activity that is suspicious and should be reported,” Barlow said. “The insider threat team then looks at the surrounding facts and draws the conclusions about the activity.”
Departments and agencies, however, are given leeway to go beyond the White House’s basic requirements, prompting the Defense Department in its strategy to mandate that workers with clearances “must recognize the potential harm caused by unauthorized disclosures and be aware of the penalties they could face.” It equates unauthorized disclosures of classified information to “aiding the enemies of the United States.”
All departments and agencies involved in the program must closely track their employees’ online activities. The information gathered by monitoring, the administration documents say, “could be used against them in criminal, security, or administrative proceedings.” Experts who research such efforts say suspicious behaviors include accessing information that someone doesn’t need or isn’t authorized to see or downloading materials onto removable storage devices like thumb drives when such devices are restricted or prohibited.
“If you normally print 20 documents a week, well, what happens if the next week or the following week you have to print 50 documents or 100 documents? That could be at variance from your normal activity that could be identified and might be investigated,” said Randy Trzeciak, acting manager of the Computer Emergency Response Team Insider Threat Center at Carnegie Mellon University’s Software Engineering Institute.
“We’ve come up with patterns that we believe organizations might be able to consider when determining when someone might be progressing down the path to harm the organization,” said Trzeciak, whose organization has analyzed more than 800 cases and works with the government and private sector on cyber security.
But research and other programs that rely on profiling show it remains unproven, could make employees more resistant to reporting violations and might lead to spurious allegations.
The Pentagon, U.S. intelligence agencies and the Department of Homeland Security have spent tens of millions of dollars on an array of research projects. Yet after several decades, they still haven’t developed a list of behaviors they can use to definitively identify the tiny fraction of workers who might some day violate national security laws.
“We are back to the needle-in-a-haystack problem,” said Fienberg, the Carnegie Mellon professor.
“We have not found any silver bullets,” said Deanna Caputo, principal behavioral psychologist at MITRE Corp., a nonprofit company working on insider threat efforts for U.S. defense, intelligence and law enforcement agencies. “We don’t have actually any really good profiles or pictures of a bad guy, a good guy gone bad or even the bad guy walking in to do bad things from the very beginning.”
Different agencies and departments have different lists of behavior indicators. Most have adopted the traditional red flags for espionage. They include financial stress, disregard for security practices, unexplained foreign travel, unusual work hours and unexplained or sudden wealth.
But agencies and their consultants have added their own indicators.
For instance, an FBI insider threat detection guide warns private security personnel and managers to watch for “a desire to help the ‘underdog’ or a particular cause,” a “James Bond Wannabe” and a “divided loyalty: allegiance to another person or company or to a country besides the United States.”
A report by the Deloitte consulting firm identifies “several key trends that are making all organizations particularly susceptible to insider threat today.” These trends include an increasingly disgruntled, post-Great Recession workforce and the entry of younger, “Gen Y” employees who were “raised on the Internet” and are “highly involved in social networking.”
Report from Deloitte
Some government programs that have embraced behavioral indicators have been condemned as failures. Perhaps the most heavily criticized is the Transportation Security Administration’s Screening of Passengers by Observation Techniques, or SPOT, program.
The program, which has cost $878 million and employs 2,800 people, uses “behavior detection officers” to identify potential terrorists by scrutinizing airline passengers for signs of “stress, fear or deception.”
DHS’ inspector general excoriated the program, saying in a May 2013 report, “TSA cannot ensure that passengers at United States airports are screened objectively, show that the program is cost-effective or reasonably justify the program’s expansion.”
Interviews and internal complaints obtained by The New York Times quoted TSA officers as saying SPOT has led to ethnic and racial profiling by emphasizing certain profiles. They include Middle Easterners, Hispanics traveling to Miami and African-Americans wearing baseball caps backward.
Another problem with having employees report co-workers’ suspicious behaviors: They aren’t sure which ones represent security threats.
“Employees in the field are not averse to reporting genuine security infractions. In fact, under appropriate conditions they are quite willing to act as eyes and ears for the government,” said a 2005 study by the Pentagon’s Defense Personnel Security Research Center. “They are simply confused about precisely what is important enough to report. Many government workers anguish over reporting gray-area behaviors.”
Even so, the Pentagon is forging ahead with training Defense Department and contractor managers and security officials to set up insider threat offices, with one company emphasizing how its course is designed for novices.
“The Establishing an Insider Threat Program for Your Organization Course will take no more than 90 minutes to complete,” says the proposal.
Officials with the Army, the only government department contacted by McClatchy that agreed to discuss the issue, acknowledged that identifying potential insider threats is more complicated than relying on a list of behaviors.
Response from the Army
“What we really point out is if you’re in doubt, report, because that’s what the investigative personnel are there to do, is to get the bottom of ‘is this just noise or is this something that is really going on?’” said Larry Gillis, a senior Army counterintelligence and security official.
The Army implemented a tough program a year before Obama’s executive order after Maj. Nidal Hasan, a U.S.-born Muslim, allegedly killed 13 people in a 2009 rampage at Fort Hood, Texas. Hasan, who has not gone on trial, has said he was defending the Afghan Taliban.
Gillis said the Army didn’t want a program that would “get people to snitch on each other,” nor did it want to encourage stereotyping.
“We don’t have the luxury to make up reasons to throw soldiers out,” Gillis said. “It’s a big deal to remove a soldier from service over some minor issue. We don’t want to ruin a career over some false accusation.”
But some current and former U.S. officials and experts worry that Obama’s Insider Threat Program could lead to false or retaliatory accusations across the entire government, in part because security officials are granted access to information outside their usual purview.
These current and former U.S. officials and experts also ridiculed as overly zealous and simplistic the idea of using reports of suspicious behavior to predict potential insider threats. It takes years for professional spy-hunters to learn their craft, and relying on the observations of inexperienced people could lead to baseless and discriminatory investigations, they said.
“Anyone is an amateur looking at behavior here,” said Thomas Fingar, a former State Department intelligence chief who chaired the National Intelligence Council, which prepares top-secret intelligence analyses for the president, from 2005 to 2008.
Co-workers, Fingar said, should “be attentive” to colleagues’ personal problems in order to refer them to counseling, not to report them as potential security violators. “It’s simply because they are colleagues, fellow human beings,” he said.
Eric Feldman, a former inspector general of the National Reconnaissance Office, the super-secret agency that oversees U.S. spy satellites, expressed concern that relying on workers to report colleagues’ suspicious behaviors to security officials could create “a repressive kind of culture.”
“The answer to it is not to have a Stasi-like response,” said Feldman, referring to the feared secret police of communist East Germany. “You’ve removed that firewall between employees seeking help and the threat that any employee who seeks help could be immediately retaliated against by this insider threat office.”
CORRECTION: An earlier version of this story gave the wrong name and title for Deanna Caputo, the principal behavioral psychologist at MITRE Corp.
from the Wall Street Journal, 2013-May-20, printed 2013-May-21, p.A16:
Theodore J. Boutrous Jr.: A Radical Departure on Press FreedomThe Justice Department has completely lost sight of the First Amendment. The situation looked grim when the public found out that the department had subpoenaed two months of the Associated Press's phone records for one leak investigation. The latest revelations—the secret tracking and search warrant for the personal email ofFox NewsWashington correspondent James Rosen—show a shocking insensitivity to freedom of the press that is premised on the radical theory that traditional news gathering violates federal criminal laws. On Thursday, NBC News reported that Attorney General Eric Holder had signed off on the warrant.
By the Justice Department's logic, doing basic reporting is committing a crime.
In June 2009, based on unnamed sources, Mr. Rosen reported that the CIA had learned from someone inside North Korea that Pyongyang planned to conduct nuclear tests in response to United Nations sanctions. In August 2010, the Justice Department indicted State Department security adviser Stephen Jin-Woo Kim for violating the Espionage Act of 1917 by leaking the information. (Mr. Kim pleaded not guilty.)
As the Washington Post first reported on Sunday, the prosecutors—unknown to Mr. Rosen or Fox News—built their case against Mr. Kim by using electronic security badge data to track Mr. Rosen's and Mr. Kim's movements in and out of the State Department and by scouring phone records showing communications between them. The prosecutors also persuaded a federal judge to issue a search warrant for Mr. Rosen's private Gmail account. Fox News is now reporting that they also appear to have tracked Mr. Rosen's parents' phone records, though the Justice Department denies this.
The FBI affidavit, submitted in May 2010 asking the court to issue a search warrant for Mr. Rosen's emails, emphasizes that Mr. Rosen cajoled Mr. Kim to disclose the classified information. He did this by "employing flattery and playing to Mr. Kim's vanity and ego," and by using signals and code names to ensure confidentiality. Remember Deep Throat and the red flag in the flowerpot? Flattering sources and using code are basic techniques reporters use to gather information that the government wants to keep secret. In the words of the Supreme Court in Times-Picayune Publishing Co. v. United States (1953), the press is tasked with "vigilantly scrutinizing" the government "as a potent check on arbitrary action or abuse."
Apparently none of this matters to the prosecutors. Instead, they tracked Mr. Rosen's movements like he was a terrorist and labeled his garden-variety, constitutionally protected reporting techniques a crime. The affidavit declares that there is "probable cause" that Mr. Rosen violated the Espionage Act "at the very least, either as an aider, abettor and/or co-conspirator." This stunning assertion was reiterated to Politico by an unnamed Justice Department spokesperson on Monday.
Search warrants involving journalists are exceedingly rare—and rightfully so. Such warrants, which allow immediate physical or electronic seizure of journalistic materials, pose a clear threat to the First Amendment. (Warrants are worse than subpoenas, since journalists can ordinarily object to and fight subpoenas in court before producing any materials or testifying.)
Congress was so concerned about the potential for abuse of search warrants that in 1980 it enacted the Privacy Protection Act "to limit searches for materials held by persons involved in First Amendment activities." The law provides strong protections for journalists against search warrants. In the case of Mr. Rosen, the government invoked one of the law's few exceptions by accusing him of "committing a crime." The "crime" was asking a government official questions about national security and then publishing the answers.
The Supreme Court, however, has repeatedly made clear that the First Amendment forbids the government from making it a crime for a reporter who lawfully obtains information of public concern to publish it—even if he knows his source may have committed a crime by leaking the information. As the court explained in Bartnicki v. Vopper (2001)—a case in which a radio station broadcast the tape of a cellphone conversation it knew had been illegally recorded and disclosed in violation of federal wiretapping laws—"a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." To conclude otherwise, the court added, would encourage "timidity and self-censorship."
In Bartnicki, the justices rejected arguments for deeming journalistic activities "unlawful" and thus outside First Amendment protection. The federal appeals court in Washington, which will preside over any appeals in Mr. Kim's case, did the same in another wiretapping case, Boehner v. McDermott, in 2007. And the Supreme Court ruled in Smith v. Daily Mail Publishing Co. (1979) that the First Amendment prohibits punishing reporters who use "routine newsgathering techniques"—asking questions— aimed at causing law-enforcement officials to divulge information that criminal law purports to bar them from publishing.
No U.S. court has ever enforced the Espionage Act against a journalist. As its title makes clear, the statute targets officials who engage in espionage by disclosing government secrets to foreign governments or enemies. To stretch its amorphous language to apply to journalists would violate both the First Amendment and due process.
In short, the Justice Department knows better than to suggest that Mr. Rosen committed a crime. This claim was a pretext to get a search warrant and rummage through Mr. Rosen's emails without regard to constitutional and statutory restrictions and the department's own policy guidelines that govern the less invasive subpoena process.
This episode is part of a pattern. The Obama administration is prosecuting a record number of Espionage Act cases against alleged leakers, and along the way it is running roughshod over long-standing precedent and policies regarding journalists.
In the AP matter, the department took the subpoena route but ignored its own guidelines, which require compelling need and surgical precision in seeking information from journalists. It also ignored the requirement to give journalists advance notice to challenge subpoenas in court before records are turned over to prosecutors.
In another pending case, a federal district court in Virginia quashed a subpoena to New York Times reporter James Risen, but a Justice Department lawyer has argued on appeal that the First Amendment provided no protection because Mr. Risen was an "eyewitness to a crime," i.e., the leak of classified information. The lawyer analogized the situation to that of someone who receives illegal drugs from a drug dealer and refuses to testify about it.
This analogy is ludicrous, and the appeals court should reject it. It is disturbing that the government is even making such an argument.
Early Thursday, President Obama said that he is "troubled" about intrusions on press freedom, and that Attorney General Holder will review his department's policies. But given that later in the day Mr. Holder's involvement in the Rosen matter was revealed, a review is not likely to clear the air. Only an immediate repudiation of the misguided policy that has been fueling these leak prosecutions will suffice.
Mr. Boutrous is a partner at Gibson, Dunn & Crutcher LLP. He has represented Dow Jones, the AP and other media organizations in the past.
from Politico, 2013-May-21, by Josh Feldman:
A Journalist 'Co-Conspirator'Ok, we've learned our lesson. Last week we tried to give the Obama Administration the benefit of the doubt over its far-reaching secret subpoenas to the Associated Press, and now we learn that was the least of its offenses against a free press. No attempt to be generous to this crowd goes unpunished.
The feds accuse a Fox reporter of criminal behavior for doing his job.
The latest news, disclosed by the Washington Post on Monday, is that the Justice Department targeted a Fox News reporter as a potential "co-conspirator" in a leak probe. The feds have charged intelligence analyst Stephen Jin-Woo Kim with disclosing classified information to Fox reporter James Rosen. That's not a surprise considering that this Administration has prosecuted more national-security cases than any in recent history.
The shock is that as part of its probe the Administration sought and obtained a warrant to search Mr. Rosen's personal email account. And it justified such a sweeping secret search by telling the judge that Mr. Rosen was part of the conspiracy merely because he acted like a journalist.
In a May 2010 affidavit in support of obtaining the Gmail search warrant, FBI agent Reginald Reyes declared that "there is probable cause to believe that the Reporter has committed or is committing a violation" of the Espionage Act of 1917 "as an aider and abettor and/or co-conspirator." The Reporter here is Mr. Rosen.
And what evidence is there to believe that Mr. Rosen is part of a spy ring? Well, declares Mr. Reyes, the reporter published a story in June 2009 saying that the U.S. knew that North Korea planned to respond to looming U.N. sanctions with another nuclear test. That U.S. knowledge was classified. But the feds almost never prosecute a journalist for disclosing classified information, not least because reporters can't be sure what's classified and what isn't.
We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years. Julian Assange of WikiLeaks, who isn't a journalist, published far more damaging leaks but has never been indicted for it.
To add to his cloak-and-dagger hype, Mr. Reyes also makes much of the fact that Mr. Rosen used an alias, "Alex," while his alleged source Mr. Kim used the alias, "Leo." Believe it or not, Mr. Rosen also disclosed in one email that he is interested in "breaking news ahead of my competitors." And he even went so far as to urge "Leo" to help him "expose muddle-headed policy when we see it—or force the administration's hand to go in the right direction, if possible."
On the evidence of five years in office that isn't possible, but trying isn't a criminal motive. And if working with a source who uses an alias is now a crime, we've come a long way from the celebration of Bob Woodward and "Deep Throat."
The best face on these accusations is that Mr. Reyes was playing up the conspiracy angle to get the judge to approve a more sweeping search, which he did. The feds were then able to read widely in Mr. Rosen's personal email account, and thus potentially use it against him.
As with the AP subpoenas, this search is overbroad and has a potentially chilling effect on reporters. The chilling is even worse in this case because Mr. Rosen's personal communications were subject to search for what appears to be an extended period of time. At least in the AP case, the subpoena was for past phone logs during a defined period. The message is that anyone who publishes a story the Administration dislikes can be targeted for email searches that could expose personal secrets.
Mr. Reyes is far exceeding his brief here, but the larger fault lies with higher-ups. U.S. Attorney Ronald Machen, who is conducting the AP and Kim leak investigations, clearly has little regard for normal Justice standards and protocol for dealing with the media. Such a sweeping probe should also have been approved by senior Justice officials, at least by the Deputy Attorney General.
With the Fox News search following the AP subpoenas, we now have evidence of a pattern of anti-media behavior. The suspicion has to be that maybe these "leak" investigations are less about deterring leakers and more about intimidating the press. We trust our liberal friends in the press corps won't mute their dismay merely because this time the target is a network they love to hate.
from the Wall Street Journal, 2013-May-20, by David B. Rivkin Jr. and Lee A. Casey:
Fox's Bret Baier Reveals That DOJ Also Seized Phone Records For James Rosen's ParentsDuring a panel discussion on the Department of Justice seizing the phone records of Fox News' James Rosen, Bret Baier revealed that the seizure included the phone records of Rosen's parents. The entire panel agreed the scandal was an outrage, with Kirsten Powers pointing out that there have been a number of high-profile leaks from the Obama administration, but the only ones they seem interested in going after are the ones that make them look bad.
Charles Krauthammer found it amazing that the government would make such a “huge assault on the first amendment” in trying to go after Rosen for doing his job. Baier pointed out that Rosen was never formally charged nor contacted by the government. Powers accused the Obama administration of being overconcerned with prosecuting whistleblowers while not going after leakers who reveal positive information about the administration.
Baier then highlighted documents revealing that the seized phone records also included “records [that] relate to James' parents' home in Staten Island.”
Tucker Carlson went after the press for being silent when the White House was trying to basically kick Fox News out of the press room, and warned that the scandal could get bigger with the revelation that a CBS reporter's computer was compromised.
from the Associated Press, 2013-May-19:
The IRS and the Drive to Stop Free SpeechThe unfolding IRS scandal is a symptom, not the disease.For decades, campaign-finance reform zealots have sought to limit core political speech through spending limits and disclosure requirements. More recently, they have claimed that it is wrong and dangerous for tax-exempt entities to engage in political speech.
Such a scandal was bound to happen after the government started trying to rule the expression of political views.
The Obama administration shares these views, especially when conservative, small-government organizations are involved, and the IRS clearly got the message. While the agency must be investigated and reformed, the ultimate cure for these abuses is to unshackle political speech by all groups, including tax-exempt ones, from arbitrary and unconstitutional government regulation.
Beginning in March 2010, the IRS engaged in an unprecedented campaign of harassment against conservative groups, either through denials or delays in approving their tax-exempt-status applications, or through endless and burdensome audits.
In notable contrast, liberal and "progressive" organizations got approvals with remarkable speed. The most conspicuous example involves the Barack H. Obama Foundation, which was approved as tax exempt within a month by the then-head of the IRS tax-exempt branch, Lois Lerner. From media reports and firsthand accounts, we also know that the IRS disproportionately audited donors to conservative causes and leaked confidential tax information concerning conservative groups in violation of federal law.
This IRS politicization is not an isolated problem. It is an inevitable result of the broader efforts to regulate and, in fact, suppress political speech.
The IRS crackdown on tax-exemption approvals for conservative groups was directed at nonprofit social-welfare groups, often called 501(c)(4)s after the Internal Revenue Code section granting them tax-exempt status. Such groups do not have to disclose their donors and are exempt from most taxation, although donations to them generally aren't tax deductible.
Social-welfare organizations are permitted to engage in a range of political activities promoting their causes or beliefs, so long as these activities aren't their "primary purpose." This has been generally understood to mean that they must spend less than 50% of their total resources on political activities.
The IRS had little interest in 501(c)(4) political activities until the 2002 McCain-Feingold campaign-finance reform. That law barred dedicated political-advocacy groups from soliciting and spending soft money—funds that aren't subject to tight federal campaign-contribution limits and are used for issue advocacy and party-building.
This IRS restraint was doubtless reinforced by the fact that virtually all politically active (c)(4)s, mostly labor and environmental groups, were ideologically liberal and their activities were not attacked in the mainstream media or by the political establishment. Meanwhile, Republicans financed their political activities largely through candidate-specific campaigns and party and congressional committees.
Yet McCain-Feingold had the unintended effect of making 501(c)(4) political activities far more important than they had been, since the law's ban on soft money doesn't apply to such groups. Thus, it prompted the creation of conservative 501(c)(4)s—although there is little hard evidence of improper political activities by any such groups, whether liberal or conservative.
The Supreme Court's 2010 decision in Citizens United further increased the importance of the groups by invalidating the restrictions against much political speech by corporations. This freed 501(c)(4) groups, which ordinarily are organized as corporations, to engage in the express advocacy of political causes and candidates.
The Obama administration made clear its deep dislike of Citizens United and of the various new conservative groups spawned by the "tea party" movement. The IRS bureaucrats took the hint. No express order from senior administration officials would have been necessary. Like other federal enforcement agencies, the IRS has always been well-attuned to even subtle guidance from the White House, Congress and the political establishment.
Thus, the IRS crackdown on conservative organizations was a direct and inevitable consequence of political and policy messaging by the Obama administration, and by the campaign-finance reformers who share these views. Congressional Democrats are also to blame, since many of them have publicly—as with Max Baucus, chairman of the Senate Finance Committee, which oversees the IRS—or privately urged the IRS to go after conservative tax-exempt organizations.
Ignoring their own share of responsibility, campaign-finance reformers and their allies are now pressing to broaden the IRS crackdown to apply to all tax-exempt organizations. In their view, the problem is not only with express political advocacy, but with all tax-exempt activities that might have political overtones, or be related to political issues. Indeed, many argue that such organizations should be conspicuously apolitical.
This is wrong as a matter of law and policy. Congress doesn't have to provide tax-exempt status to social-welfare organizations, but having done so it cannot discriminate by the kind of advocacy in which such groups engage. To say that such activities can have no political implications is an insult to common sense. In a vibrant democracy, every major policy debate has political implications.
The spirited debate about policy issues should be at the core of social-welfare organizations. Politics is how we govern ourselves and political speech is essential to self-governance. The fact that 501(c)(4) group contributors aren't subject to campaign disclosure requirements is a good thing.
There is nothing inherently evil about anonymous political speech. It is firmly anchored in our political and legal culture and was used by the Framers during the founding. Hamilton, Madison and Jay published their Federalist Papers under a pseudonym. The fact that the IRS was able to target conservative donors—similar to the way donors to the NAACP were targeted at the height of the civil-rights battles—shows how disclosure can lead to speech-suppressing government actions.
The courts have long held that the IRS cannot use subjective, "value-laden" tests in administering nonprofit status. As the Court of Appeals for the D.C. Circuit stated in one leading case, Big Mama Rag, Inc. v. United States (1980): "although First Amendment activities need not be subsidized by the state, the discriminatory denial of tax exemptions can impermissibly infringe free speech."
The proper lessons of the unfolding IRS scandal are twofold. First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts. Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.
Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.
from NewsMax, 2013-May-14, by David Yonkman:
AP CEO: Phone Search was 'Unconstitutional'The president and CEO of The Associated Press says the government's seizure of AP journalists' phone records was "unconstitutional" and already has had a chilling effect on newsgathering.
Gary Pruitt, speaking on CBS' "Face the Nation," says the Justice Department's secret subpoena of reporters' phone records has made sources less willing to talk to AP journalists.
The Justice Department disclosed the seizure of two months of phone records in a letter the AP received May 10. The letter did not state a reason, but prosecutors had said they were conducting a leaks investigation into how the AP learned about an al-Qaida bomb plot in Yemen before it was made public last year.
Pruitt said the AP story contradicted the government's claim at the time there was no terrorist plot.
from the Wall Street Journal, 2013-Jan-30, printed 2013-Jan-31, p.A13, by Daniel Henninger:
Carl Bernstein: AP Phone Scandal a 'Nuclear Event'Washington -- Investigative reporter Carl Bernstein on Tuesday called the scandal involving the Department of Justice securing telephone records of Associated Press reporters and editors a "nuclear event."
"This is outrageous," Bernstein said on MSNBC's "Morning Joe." "It is totally inexcusable. This administration has been terrible on this subject from the beginning.
"The object of it is to intimidate people who talk to reporters," he said. "This was an accident waiting to become a nuclear event, and now it's happened."
The AP reported late Monday afternoon that the "Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press."
The organization was not told the reason for the seizure. But the timing and the specific journalistic targets strongly suggest they are related to a continuing government investigation into the leaking of information a year ago about the CIA's disruption of a Yemen-based terrorist plot to bomb an airliner, The New York Times reported.
The development represents the latest collision of news organizations and federal investigators over government efforts to prevent the disclosure of national security information, and it comes against a backdrop of an aggressive policy by the Obama administration to rein in leaks, according to The New York Times.
Under President Barack Obama, six current and former government officials have been indicted in leak-related cases, twice the number brought under all previous administrations combined.
"The numerical thing doesn't matter," said Bernstein, a former Washington Post reporter who, along with Bob Woodward, broke the Watergate scandal that brought down President Richard Nixon. "What matters is, this is a matter of policy. It is known to the president of the United States that this is the policy. To say that there was no knowledge, in quotes, specifically about this in the White House is nonsense."
"This is a policy matter, and this does go to the president and the people around him," he said. "The idea is to try and make an example of those people who talk to reporters, especially on national security matters. National security is always the false claim of administrations trying to hide things that people ought to know."
That the Justice Department sought records of phone calls made over congressional phone lines could also raise a separation of powers issue between the administration and legislative branches of government.
"The First Amendment is first for a reason," House Speaker John Boehner spokesman Michael Steel tells Newsmax. "If the Obama administration is going after reporters' phone records, they better have a damned good explanation."
from the Wall Street Journal, 2012-Nov-16, by Sohrab Ahmari:
Obama's Thunderdome StrategyFew are the men and women in American public life who haven't heard Mr. Dooley's famous aphorism: "Politics ain't beanbag." John Boehner, currently serving out his community service as speaker of the House, appears to have been meditating on Mr. Dooley's cautionary wisdom. At the Ripon Society last week he said the Obama administration was trying "to annihilate the Republican Party."
The president's goal is to make Republican ideas intolerable.
Better late than never, Speaker Boehner now sees that Barack Obama's notion of political competition is Mad Max inside the Thunderdome: "Two men enter, one man leaves."
Last week during the president's second inaugural address, if one can employ that hallowed phrase to describe this speech, Mr. Obama used the occasion to defend entitlement programs by whacking his defeated presidential opponent: "They do not make us a nation of takers."
This was the second time Mr. Obama used a traditionally elevated forum to take down his opposition. His 2010 State of the Union speech will be remembered in history for nothing other than an attack on members of the Supreme Court seated before him. Justice Samuel Alito's whispered "Not true" would prove a prophetic comment on the Obama modus operandi.
Subsequent targets of the president's contempt have included the members of Congress's deficit-reduction supercommittee, the Ryan budget ("antithetical to our entire history"), repeated attacks on the "well off" and bankers, and famously a $100 million dump-truck of vilification on Mitt Romney.
When he won, the rationalization was that it was all a shrewd if brutal campaign strategy. But it kept coming. What is striking about the Obama technique is that it's not so much criticism as something closer to political obliteration, driving his opposition out of the political arena altogether.
After the inaugural speech, Obama communications director Dan Pfeiffer said that Democrats don't have "an opposition party worthy of the opportunity." Even among the president's supporters, one is hard put now to find anyone who doesn't recognize that Mr. Obama's original appeal to hope and change has given way to search and destroy.
Conventional wisdom holds that these unorthodox tactics are a mistake, that he's going to need GOP support on immigration and such. And by now it's conventional wisdom that when our smiling president transforms into Mr. Hyde he is merely channeling Saul Alinsky, deploying the tactics of community-organizing campaigns, the only operational world he knew before this.
The real pedigree, though, is a lot heavier than community organizing in Chicago.
Speaking last Saturday, Rep. Paul Ryan said that for Barack Obama to achieve his goals, "he needs to delegitimize the Republican Party." Annihilate, delegitimize—it's the same thing. The good news is that John Boehner and Paul Ryan recognize that their relationship with this White House is not as partners in anything. They are prey.
Back in 1965, when American politics watched the emergence of the New Left movement—rebranded today as "progressives"—a famous movement philosopher said the political left should be "liberated" from tolerating the opinions of the opposition:"Liberating tolerance would mean intolerance against movements from the Right and toleration of movements from the Left."
That efficient strategy was the work of Herbert Marcuse, the political theorist whose ideas are generally credited with creating the basis for campus speech codes. Marcuse said, "Certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed." Marcuse created political correctness.
But let's talk about Marcuse in the here and now. He also proposed the withdrawal of toleration "from groups and movements . . . which oppose the extension of public services, social security, medical care, etc."
Barack Obama in his "gloves-off" news conference Jan. 14: "They have suspicions about Social Security. They have suspicions about whether government should make sure that kids in poverty are getting enough to eat or whether we should be spending money on medical research."
Marcuse called this "the systematic withdrawal of tolerance toward regressive and repressive opinions." That, clearly, is what President Obama—across his first term, the presidential campaign and now—has been doing to anyone who won't line up behind his progressivism. Delegitimize their ideas and opinions.
A Marcusian world of political intolerance became a reality on U.S. campuses. With relentless pushing from the president, why couldn't it happen in American political life? Welcome to the Thunderdome.
The original argument for the Obama presidency was that this was a new, open-minded and liberal man intent on elevating the common good. No one believes that now. This will be a second term of imposition. As he said in the inaugural: "Preserving our individual freedoms ultimately requires collective action." That is Marcusian.
If the opposition is looking for one word to shape its role now, it would be this: Dissent.
from PaidContent.org, 2012-Jan-5, by Staci D. Kramer:
How Free Speech Died on CampusNew York
A young activist describes how universities became the most authoritarian institutions in America.
At Yale University, you can be prevented from putting an F. Scott Fitzgerald quote on your T-shirt. At Tufts, you can be censured for quoting certain passages from the Quran. Welcome to the most authoritarian institution in America: the modern university—"a bizarre, parallel dimension," as Greg Lukianoff, president of the Foundation for Individual Rights in Education, calls it.
Mr. Lukianoff, a 38-year-old Stanford Law grad, has spent the past decade fighting free-speech battles on college campuses. The latest was last week at Fordham University, where President Joseph McShane scolded College Republicans for the sin of inviting Ann Coulter to speak.
"To say that I am disappointed with the judgment and maturity of the College Republicans . . . would be a tremendous understatement," Mr. McShane said in a Nov. 9 statement condemning the club's invitation to the caustic conservative pundit. He vowed to "hold out great contempt for anyone who would intentionally inflict pain on another human being because of their race, gender, sexual orientation, or creed."
To be clear, Mr. McShane didn't block Ms. Coulter's speech, but he said that her presence would serve as a "test" for Fordham. A day later, the students disinvited Ms. Coulter. Mr. McShane then praised them for having taken "responsibility for their decisions" and expressing "their regrets sincerely and eloquently."
Mr. Lukianoff says that the Fordham-Coulter affair took campus censorship to a new level: "This was the longest, strongest condemnation of a speaker that I've ever seen in which a university president also tried to claim that he was defending freedom of speech."
I caught up with Mr. Lukianoff at New York University in downtown Manhattan, where he was once targeted by the same speech restrictions that he has built a career exposing. Six years ago, a student group at the university invited him to participate in a panel discussion about the Danish cartoons depicting the Prophet Muhammad that had sparked violent rioting by Muslims across the world.
When Muslim students protested the event, NYU threatened to close the panel to the public if the offending cartoons were displayed. The discussion went on—without the cartoons. Instead, the student hosts displayed a blank easel, registering their own protest.
"The people who believe that colleges and universities are places where we want less freedom of speech have won," Mr. Lukianoff says. "If anything, there should be even greater freedom of speech on college campuses. But now things have been turned around to give campus communities the expectation that if someone's feelings are hurt by something that is said, the university will protect that person. As soon as you allow something as vague as Big Brother protecting your feelings, anything and everything can be punished."
You might say Greg Lukianoff was born to fight college censorship. With his unruly red hair and a voice given to booming, he certainly looks and sounds the part. His ethnically Irish, British-born mother moved to America during the 1960s British-nanny fad, while his Russian father came from Yugoslavia to study at the University of Wisconsin. Russian history, Mr. Lukianoff says, "taught me about the worst things that can happen with good intentions."
Growing up in an immigrant neighborhood in Danbury, Conn., sharpened his views. When "you had so many people from so many different backgrounds, free speech made intuitive sense," Mr. Lukianoff recalls. "In every genuinely diverse community I've ever lived in, freedom of speech had to be the rule. . . . I find it deeply ironic that on college campuses diversity is used as an argument against unbridled freedom of speech."
After graduating from Stanford, where he specialized in First Amendment law, he joined the Foundation for Individual Rights in Education, an organization co-founded in 1999 by civil-rights lawyer Harvey Silverglate and Alan Charles Kors, a history professor at the University of Pennsylvania, to counter the growing but often hidden threats to free speech in academia. FIRE's tactics include waging publicity campaigns intended to embarrass college administrators into dropping speech-related disciplinary charges against individual students, or reversing speech-restricting policies. When that fails, FIRE often takes its cases to court, where it tends to prevail.
In his new book, "Unlearning Liberty," Mr. Lukianoff notes that baby-boom Americans who remember the student protests of the 1960s tend to assume that U.S. colleges are still some of the freest places on earth. But that idealized university no longer exists. It was wiped out in the 1990s by administrators, diversity hustlers and liability-management professionals, who were often abetted by professors committed to political agendas.
"What's disappointing and rightfully scorned," Mr. Lukianoff says, "is that in some cases the very professors who were benefiting from the free-speech movement turned around to advocate speech codes and speech zones in the 1980s and '90s."
Today, university bureaucrats suppress debate with anti-harassment policies that function as de facto speech codes. FIRE maintains a database of such policies on its website, and Mr. Lukianoff's book offers an eye-opening sampling. What they share is a view of "harassment" so broad and so removed from its legal definition that, Mr. Lukianoff says, "literally every student on campus is already guilty."
At Western Michigan University, it is considered harassment to hold a "condescending sex-based attitude." That just about sums up the line "I think of all Harvard men as sissies" (from F. Scott Fitzgerald's 1920 novel "This Side of Paradise"), a quote that was banned at Yale when students put it on a T-shirt. Tufts University in Boston proscribes the holding of "sexist attitudes," and a student newspaper there was found guilty of harassment in 2007 for printing violent passages from the Quran and facts about the status of women in Saudi Arabia during the school's "Islamic Awareness Week."
At California State University in Chico, it was prohibited until recently to engage in "continual use of generic masculine terms such as to refer to people of both sexes or references to both men and women as necessarily heterosexual." Luckily, there is no need to try to figure out what the school was talking about—the prohibition was removed earlier this year after FIRE named it as one of its two "Speech Codes of the Year" in 2011.
At Northeastern University, where I went to law school, it is a violation of the Internet-usage policy to transmit any message "which in the sole judgment" of administrators is "annoying."
Conservatives and libertarians are especially vulnerable to such charges of harassment. Even though Mr. Lukianoff's efforts might aid those censorship victims, he hardly counts himself as one of them: He says that he is a lifelong Democrat and a "passionate believer" in gay marriage and abortion rights. And free speech. "If you're going to get in trouble for an opinion on campus, it's more likely for a socially conservative opinion."
Consider the two students at Colorado College who were punished in 2008 for satirizing a gender-studies newsletter. The newsletter had included boisterous references to "male castration," "feminist porn" and other unprintable matters. The satire, published by the "Coalition of Some Dudes," tamely discussed "chainsaw etiquette" ("your chainsaw is not an indoor toy") and offered quotations from Teddy Roosevelt and menshealth.com. The college found the student satirists guilty of "the juxtaposition of weaponry and sexuality."
"Even when we win our cases," says Mr. Lukianoff, "the universities almost never apologize to the students they hurt or the faculty they drag through the mud." Brandeis University has yet to withdraw a 2007 finding of racial harassment against Prof. Paul Hindley for explaining the origins of "wetback" in a Latin-American Studies course. Indiana University-Purdue University Indianapolis apologized to a janitor found guilty of harassment—for reading a book celebrating the defeat of the Ku Klux Klan in the presence of two black colleagues—but only after protests by FIRE and an op-ed in these pages by Dorothy Rabinowitz.
What motivates college administrators to act so viciously? "It's both self-interest and ideological commitment," Mr. Lukianoff says. On the ideological front, "it's almost like you flip a switch, and these administrators, who talk so much about treating every student with dignity and compassion, suddenly come to see one student as a caricature of societal evil."
Administrative self-interest is also at work. "There's been this huge expansion in the bureaucratic class at universities," Mr. Lukianoff explains. "They passed the number of people involved in instruction sometime around 2006. So you get this ever-renewing crop of administrators, and their jobs aren't instruction but to police student behavior. In the worst cases, they see it as their duty to intervene on students' deepest beliefs."
Consider the University of Delaware, which in fall 2007 instituted an ideological orientation for freshmen. The "treatment," as the administrators called it, included personal interviews that probed students' private lives with such questions as: "When did you discover your sexual identity?" Students were taught in group sessions that the term racist "applies to all white people" while "people of color cannot be racists." Once FIRE spotlighted it, the university dismantled the program.
Yet in March 2012, Kathleen Kerr, the architect of the Delaware program, was elected vice president of the American College Personnel Association, the professional group of university administrators.
A 2010 survey by the American Association of Colleges and Universities found that of 24,000 college students, only 35.6% strongly agreed that "it is safe to hold unpopular views on campus." When the question was asked of 9,000 campus professionals—who are more familiar with the enforcement end of the censorship rules—only 18.8% strongly agreed.
Mr. Lukianoff thinks all of this should alarm students, parents and alumni enough to demand change: "If just a handful more students came in knowing what administrators are doing at orientation programs, with harassment codes, or free-speech zones—if students knew this was wrong—we could really change things."
The trouble is that students are usually intimidated into submission. "The startling majority of students don't bother. They're too concerned about their careers, too concerned about their grades, to bother fighting back," he says. Parents and alumni dismiss free-speech restrictions as something that only happens to conservatives, or that will never affect their own children.
"I make the point that this is happening, and even if it's happening to people you don't like, it's a fundamental violation of what the university means," says Mr. Lukianoff. "Free speech is about protecting minority rights. Free speech is about admitting you don't know everything. Free speech is about protecting oddballs. It means protecting dissenters."
It even means letting Ann Coulter speak.
Mr. Ahmari is an assistant books editor at the Journal.
from the Atlantic, 2012-Jul/Aug, by Jeffrey Rosen:
NewsRight Launches With 29 Publishers; `Not A Litigation Shop'Three years after the Associated Press started the News Registry to help publishers track their content online—and make money from reuse—comes NewsRight, the startup designed to make that work actually pay off.
Headed by David Westin, the former head of ABC News, NewsRight, the new name for AP spinoff NLG, moves into this phase with more than $30 million in cash and in-kind investment from 29 founding news and info publishers covering 841 sites. It also has the rights to license content—not just to track it through the microtag attached to every piece of content on member sites.
The in-kind investment covers the News Registry technology from AP that was spun off into NewsRight's predecessor and other tech assets. Westin, a former AP board member for broadcasting, joined as CEO in April. At ABC (NYSE: DIS) News, Westin ran a large news global organization. At NewsRight, he heads a lean staff spread between San Francisco and New York; he expects to make some sales and product hires soon.
The roster includes Advance, Hearst, the New York Times (NYSE: NYT) and the Washington Post Co. (NYSE: WPO)—but not Gannett (NYSE: GCI) (full list below). No specifics on the amount of cash but there are three different tiers of membership. Each member has one vote and no company has more than one board member; Bob Nutting, president and CEO of Ogden Newspapers, is the chairman.
The News Registry already tracks more than four billion impressions a month from nearly 170 million unique users but NewsRight has yet to sign a single deal. During an interview, Westin said the company was limited to preliminary discussion until it had the full rights clearance from its members.
NewsRight's first target: media monitoring services and others who charge enterprises for collecting news and info. He didn't want to get specific during an interview but for examples think Meltwater, Moreover, Vocus, and BurrellesLuce. He also didn't want to talk specifics about how the economics of a deal would work but said Newsright would get a fee with the bulk going back to publishers based on what they provide.
He hopes going public will encourage people to come up with new products that might have been considered too difficult before NewsRight could offer one-stop licensing across hundreds of sites. NewsRight services also include data and analytics that would show licensees how specific content is being used.
While NewsRight is headed by a lawyer, it would be a mistake to confuse NewsRight with Righthaven or other concepts based on raising money from copyright transgressions. Publishers can use the information provided by NewsRight to pursue their own actions but that's not the startup's mission. “We don't own the copyrights, we couldn't bring a lawsuit if we wanted to,” says Westin. “We really are interested in entering to business relationships and contracts. We're not a litigation shop.”
Full list of NewsRight founding members: Advance Publications, Associated Press, Axel Springer Group, A.H.Belo Management Services, Belo Management Services, Business Wire, Community Newspaper Holdings, El Dia, Galveston Newspapers, Gatehouse Media, The Gazette Company, Hearst Newspapers, Journal Communications (NYSE: JRN), Landmark Media Enterprises, McClatchy (NYSE: MNI), Media General (NYSE: MEG), MediaNews Group, Morris Communications, Morris Multimedia, NPG Newspapers, The New York Times Co., Ogden Newspapers, Pioneer Newspapers, Schurz Communications, E.W. Scripps (NYSE: SSP), Stephens Media, Swift Communications, Times Publishing Co. and Washington Post Co..