It’s vital to protect anonymous speech; start by cleaning up the online cesspools

The people who want to control online speech have won some influential allies. New York Times blogger Stanley Fish has given a glowing endorsement to a new book of essays in which law professors – – who profess to believe in free speech — call for the curtailment of online anonymity.

Their hearts are in the right place. Parts of the Internet are cesspools of slimy speech, where anonymous cowards hide behind virtual bushes and say outrageous, untrue things about others. I’ve been attacked in this way, and I don’t like it.

So of course anyone with a conscience wants to encourage accountability and responsibility in speech. But the key word there is “encourage,” not “force.” It’s essential to preserve anonymity, and to appreciate why it’s vital. Anonymity protects whistle-blowers and others for whom speech can be unfairly dangerous.

If Fish’s description of the book is accurate, the authors are offering a cure that is much more dangerous than the disease: They would require Internet sites to take legal responsibility for what other people post on their sites.

Worse, they pay too little attention to the people who can do most to solve this problem. Who are those people? Us, you and me, who are the audiences for speech. We are the ones who need to take more responsibility. I’ll come back to this, but first let’s understand why the authors’ fix would stifle online speech in dangerous ways.

Fish writes:

The Internet and the real world, [essayist Brian] Leiter concludes, “would both be better places” if Internet providers were held accountable for the scurrilous and harmful material they disseminate.

How might that be managed? The answer given by the authors in this volume involves the repeal or modification of Section 230 of the Communications Decency Act, which says that no provider of an Internet service shall be treated as the publisher of information provided by another. That is, the provider is not liable for what others have said, and courts have interpreted that section as immunizing providers even when they “have knowledge that [a statement] is defamatory or invasive of privacy.”

Modifying Section 230 is risky business. This law has done more to encourage robust speech, by far, than any other piece of legislation in recent history. The immunity rests with the host. It does not extend to the person who posted the defamatory material. And courts have routinely required hosts to turn over information — such as IP addresses — about people who’ve posted defamatory material, while also generally resisting fishing expeditions by parties, especially companies, that want to shut down harsh but non-defamatory criticism.

If the law required Internet sites to monitor and control the speech they hosted, all kinds of conversations — mail lists, forums, comment threads and more – would simply disappear. The legal exposure for hosts would simply be too great for most people or companies to take the chance; being sued, even if you’re entirely in the right, can be ruinous financially.

What we need to modify most is our own attitudes.

This should start with the way we treat a kind of anonymous speech that I consider vastly more pernicious than the crapola I see on random blogs and comment threads: the too-common use of anonymity in Big Media reporting. As I’ve written in my new book, “Mediactive,” I have a rule of thumb. When a news report quotes anonymous sources, I immediately question the entire thing. I’m skeptical enough about spin from people who stand behind their own words, but downright cynical about the people who use journalist-granted anonymity to push a position or, worse, slam someone else. When someone hides behind anonymity to attack someone else this way, you shouldn’t just ignore it.In the absence of actual evidence, you should actively disbelieve it. And you should hold the journalist who reports it in contempt for being the conduit.

I have even less respect, if that’s possible, for most online comment threads. Anonymous commenters on blogs or news articles deserve less than no credibility on any BS meter. They’d have to work hard just to have zero credibility.

Pseudonyms are a more interesting case, and can have value. Done right, they can bring greater accountability and therefore somewhat more credibility than anonymous comments. Content-management systems have mechanisms designed to require some light-touch registration, even if it’s merely having a working e-mail address, and to prevent more than one person from using the same pseudonym on a given site. A pseudonym isn’t as useful as a real name, but it does encourage somewhat better behavior, in part because it’s more accountable. A pseudonymous commenter who builds a track record of worthwhile conversation, moreover, can build personal credibility even without revealing his or her real name (though I believe using real names is almost always better).

Conveners of online conversations need to provide better tools for the people having the conversations. These include moderation systems that actually help bring the best commentary to the surface, ways for readers to avoid the postings of people they find offensive and community-driven methods of identifying and banning abusers.

Again, while recognizing the real problem of anonymous sleaze, I emphasize again that it’s vital to preserve anonymity while encouraging its responsible use. And it’s even more vital for us to put anonymous attacks in their place: the virtual garbage pits where they belong. Only we can do that.

So when people don’t stand behind their words, we should always wonder why — and make appropriate adjustments in how we react to what they say.

(Note: I’ll be discussing this and other topics on Jan. 12 in a talk at the New America Foundation in Washington, D.C. You can find more information about the event here.)

]]> http://mediactive.com/2011/01/12/fix-for-anonymous-sleaze-is-in-our-attitudes-not-laws/feed/ 10 http://mediactive.com/2011/01/07/the-fccs-weak-new-open-internet-rules/ http://mediactive.com/2011/01/07/the-fccs-weak-new-open-internet-rules/#comments Fri, 07 Jan 2011 20:59:36 +0000 Dan Gillmor http://mediactive.com/?p=2849 This article was originally published on Salon.com on December 21, 2010.

A partisan vote on Tuesday displeases everyone. And everyone’s right

The neutering of the Internet is now the unofficial policy of the Federal Communications Commission. Contrary to the happy talk from FCC Chairman Julius Genachowski at a rule-making announcement today in Washington, the move is well underway to turn the Internet into a regulated playground for corporate giants.

Tuesday’s FCC vote on rules purportedly designed to ensure open and free networks was a 3-2 partisan charade, with Genachowski and the other two Democratic commissioners in favor and the two Republicans against. It did nothing of the sort. The short-term result will be confusion and jockeying for position. Genachowski’s claim that the rules bring “a level of certainty” to the landscape was laughable unless he was talking about lobbyists and lawyers; their futures are certainly looking prosperous. The longer-range result will be to solidify the power of the incumbent powerhouses — especially telecommunications providers and the entertainment industry — to take much more control over what we do online.

It’s almost not worth the trouble of telling you what’s in the rules, because they are so meaningless. About the only redeeming feature is a requirement that ISPs be more transparent about how they manage their networks. I would expect to see a bare minimum of compliance here, and little if any enforcement except an occasional wrist-slap, if that.

But when it came to rules that might boost network neutrality – the notion that end users (you and me) should decide what content and services we want without interference from the ISPs — the FCC’s order paid lip service to the concept while enshrining its eventual demise.  In theory, land-line carriers (traditional phone and cable companies, for the most part) won’t be allowed to play favorites. In practice, the new rules invite them to concoct new kinds of services that do precisely that.

But even that fuzzy concept won’t apply to mobile carriers, which means that discrimination will be explicitly permitted by companies like AT&T and Verizon for customers of the iPhone and iPad, among other devices that are increasingly the most important entry point to the Internet.

The rules are also an open invitation to ISPs to spy on their customers. Genachowski’s repeated references to users’ right to use “legal” content were code words for the entertainment industry’s push to have ISPs become their enforcement arms in the copyright wars. Hollywood wants your ISP to watch everything people do, and then block users who are alleged to be infringing.

If Genachowski and his supporters think that they’ve done the right thing because they’re being attacked from all sides, they’re missing the reality. Sometimes, when everyone hates what you’ve done, you’ve done the wrong thing.

The FCC majority didn’t have the courage, or the political support from the Obama administration (yes, another broken promise), to push for regulations that would address net neutrality in any meaningful way. So the protests from open-Internet folks was immediate, and justified.

Republicans and their house organ, Fox News, talk about Tuesday’s vote as a “plan to regulate the Internet,” and they’re half-right. They mouth platitudes about freedom and liberty. They end up with a free-fire zone for corporations — an oligopoly of content and services for captive consumers.

But they’re right to be wary of regulation, because we’ve seen the corrosive effect of regulation in so many other arenas already. The FCC is already a captive of telecom companies in its traditional operations. Why would anyone expect this to be any different when it comes to the Internet? And the law of unintended consequences tells us that any regulations would be sure to have effects we can’t foresee today. That’s the issue the network-neutrality advocates also usually fail to address.

What wasn’t on the table in the FCC’s deliberations was actual competition. Unlike many other countries, the United States doesn’t require Internet providers to share their lines and networks. By “share” I don’t mean “give away” — this is essentially about renting capacity to other companies that want to be ISPs. That’s how the Internet got so big so fast in the first place: Phone companies were not allowed to prevent other ISPs from offering service on phone lines, but now they’re allowed to prevent similar competition, and the market is a stifling oligopoly as a result.

If you think the Internet should be an enhanced form of cable television, you should be happy where we’re heading. If you think it should be the messy and complex result of what innovators want to create, and what customers at the networks’ edges want to do with the creations, you should worry.

Unfortunately, they’re not American journalists

It’s heartening to see some journalists standing up for principle in the WikiLeaks affair. A case in point is this letter to Australian Prime Minister Julia Gillard. It begins:

The leaking of 250,000 confidential American diplomatic cables is the most astonishing leak of official information in recent history, and its full implications are yet to emerge. But some things are clear. In essence, WikiLeaks, an organisation that aims to expose official secrets, is doing what the media have always done: bringing to light material that governments would prefer to keep secret.

In this case, WikiLeaks, founded by Australian Julian Assange, worked with five major newspapers around the world, which published and analysed the embassy cables. Diplomatic correspondence relating to Australia has begun to be published here.

The volume of the leaks is unprecedented, yet the leaking and publication of diplomatic correspondence is not new. We, as editors and news directors of major media organisations, believe the reaction of the US and Australian governments to date has been deeply troubling. We will strongly resist any attempts to make the publication of these or similar documents illegal. Any such action would impact not only on WikiLeaks, but every media organisation in the world that aims to inform the public about decisions made on their behalf. WikiLeaks, just four years old, is part of the media and deserves our support.

The letter is signed by a who’s who of Australian professional journalists — men and women at the pinnacle of their nation’s craft. They know what is at stake as governments, led by the United States, work feverishly to shut down WikiLeaks and criminalize what it has done. Here’s more of the letter:

To prosecute a media organisation for publishing a leak would be unprecedented in the US, breaching the First Amendment protecting a free press. In Australia, it would seriously curtail Australian media organisations reporting on subjects the government decides are against its interests.

WikiLeaks has no doubt made errors. But many of its revelations have been significant. It has given citizens an insight into US thinking about some of the most complex foreign policy issues of our age, including North Korea, Iran and China.

It is the media’s duty to responsibly report such material if it comes into their possession. To aggressively attempt to shut WikiLeaks down, to threaten to prosecute those who publish official leaks, and to pressure companies to cease doing commercial business with WikiLeaks, is a serious threat to democracy, which relies on a free and fearless press.

Now contrast this with the what we’re seeing from prominent U.S. journalists. Most are merely silent on the principle of free speech, which is bad enough. An apparently visceral dislike of Julian Assange is causing many who do discuss the issue to make distinctions that will haunt their profession later on. Here’s a case in point in this morning’s Wall Street Journal, an op-ed piece by Gordon Crovitz, whom I consider a friend but with whom I could not disagree more on this topic. Like too many of his colleagues, the logic of his distinctions invites criminalization of practices we’ve long taken for granted in America and many other places that purport to enjoy serious press freedom — practices that have shone vital lights into dark corners of policies, often misguided and sometimes criminal, that our government has carried out in our names and with our money.

The U.S. government’s legal attack on WikiLeaks — as opposed to the disgusting bullying of intermediary corporations to take the site off the Internet — appears to be growing stronger. As CNN reports this morning, Julian Assange’s lawyer told Al Jazeera that a grand jury has been meeting in Virginia, and that Assange may soon face espionage charges here.

I received a letter over the weekend, similar in tone to the Australian journalists’ letter to that nation’s prime minister, from an organization that wants to garner support from U.S.-based media people. I’m signing it. I’d have been happier if it had originated from major news organizations. The fact that it did not is testament to their collective abdication at a time of unprecedented peril.

By defending the organization as media, which we should, we may invite some unwanted consequences

Twitter may be the worst medium around for nuance, but a series of 140-character messages can at least clarify a disagreement. A couple of conversations there last night brought home some fundamental issues in the WikiLeaks affair, at least as it affects the future of journalism and free speech.

One conversation was with a journalist friend, Jason Pontin, editor of the MIT Technology Review. Like many people, he’s not thrilled with all of what Julian Assange and his WikiLeaks team are doing. But when he boiled down a key issue to this — “Is @wikileaks a media entity, and is Assange a journalist?” — he hit the heart of a debate that is going to rage in coming weeks and months.

If I’m right, and I pray I’m not, the debate will lead to a drastic weakening of the American people’s already eroded right to know what their government is doing in their name and with their money. It will also lead to federal licensing of journalists in America, which would be an absolute disaster for the craft.

The debate will arise if, as seems increasingly likely, the Obama administration charges, extradites and tries Assange for espionage, using an old law, the Espionage Act of 1917, in new and, if successful, hugely destructive ways. This notion has already been aired twice, among other places, on the editorial pages of the Wall Street Journal, where executive power is deemed essentially limitless when it comes to anything relating to national security or crime (except most corporate wrongdoing, of course).

In today’s edition, for example, an Op-Ed piece by Gabriel Schoenfeld insists that Assange could easily be charged under the law. He acknowledges that newspapers have published secrets on many occasions, but they lacked the “criminal ‘bad faith’” needed to be convicted. He also implies that the New York Times should have been charged in the Pentagon Papers case. He concludes:

WikiLeaks is something else. It is not informing our democracy but waging war on its ability to conduct diplomacy and defend itself. If Mr. Assange were tried before a jury and sent to jail, our security would be enhanced and our cherished freedoms not abridged one whit.

WikiLeaks is something else, but not the way Schoenfeld thinks. It is very much “informing our democracy” — among other things, exposing some egregious lies our government seems to have told. If he wants to mind-read Assange and company to assume they want to ruin diplomacy and our national defense, let me mind-read and suggest that the documents, on balance, have shone a valuable light into some ugly corners that needed illumination. That is what journalists do, isn’t it, when they do their jobs?

When Pontin posed his question, I answered, reprising an earlier posting here this week, “Yes, WikiLeaks is a media org. Defend them and you’re defending yourself. No one’s asking you to like them.” (I’ve made tiny edits in quoted tweets here, to fix misspellings, grammar and punctuation.)

Jason said he understood why new-media advocates might say that. He also saw logic in a traditional-media argument that WikiLeaks “lacks most of the defining characteristics of journalism.” He went on to say that WikiLeaks “doesn’t report or create; doesn’t synthesize and analyze; has an agenda other than truth-telling; etc.”

Another Twitter user chimed in with similar thoughts. He’s a military public affairs person (who emphasizes that he speaks for himself on Twitter and is in no way acting there as a spokesman for the military). He wrote, sarcastically, “Sure @wikileaks is a media company with all those articles and bylines … oh, wait … oops.” I asked if only media companies deserve the First Amendment. Not the point, came the reply: “My premise is we get terms right and stop categorizing them as ‘media.’” And this follow-up: “They don’t create. They redistribute.”

The idea that journalism can exist only with the act of synthesis and analysis, and with no agenda but truth-telling, doesn’t stand up to reality. If it did, much of what appears in the major media today would fail that test, certainly on the “synthesis and analysis” element; when reporters serve as stenographers, uncritically writing down what the rich and powerful say and neglecting to tell their audiences when the rich and powerful are lying, the only synthesis involved is deciding which quotes to include.

WikiLeaks, far from indiscriminate dumping of what it has unearthed, has demonstrated increasing sensitivity to the impact of the information. The New York Times showed the government what it wanted to report, and took government “advice” on what to exclude. WikiLeaks tried to get the State Department’s help in vetting sensitive documents but was rebuffed. It tried to be responsible in what could be called a journalistic way — much more so than its critics are claiming — but our government refused. Was this because the government wanted what it might consider clean-ish hands when it charged this particular media organization with spying?

Even engaging in this debate worries me, because to do so suggests that the people we call journalists have more advanced free-speech rights than the rest of us. I vehemently disagree with that notion. I do believe, however, that acts of journalism are worthy of certain special protections in certain special circumstances.

This is why so-called shield laws — giving protection to whistle-blowers by giving journalists some immunity from orders to disclose them in most cases — can be pernicious. When they attempt to define who the journalists are, as opposed to what qualifies as journalism, they inevitably lead toward this: The government, or its agent, decides who qualifies as a bona fide journalist.

This is where the WikiLeaks conversation could take us, too. By appropriately defending it as a media organization, as we anticipate prosecution to follow government’s current persecution, we invite the question of what kind of leak-driven website wouldn’t be. Again, we end up with government licensing. We don’t want to go there.

Journalists should wake up and realize that the attacks on the whistle-blower are attacks on them, too

Journalists cover wars by not taking sides. But when the war is on free speech itself, neutrality is no longer an option.

The WikiLeaks releases are a pivotal moment in the future of journalism. They raise any number of ethical and legal issues for journalists, but one is becoming paramount.

As I said last week, and feel obliged to say again today, our government — and its allies, willing or coerced, in foreign governments and corporations — are waging a powerful war against freedom of speech.

WikiLeaks may well make us uncomfortable in some of what it does, though in general I believe it’s done far more good than harm so far. We need to recognize, however, as Mathew Ingram wrote over the weekend, that “Like It or Not, WikiLeaks is a Media Entity.” What our government is trying to do to WikiLeaks now is lawless in stunning ways, as Salon’s Glenn Greenwald forcefully argued today.

These are also acts of outright censorship. No, Amazon is not bound by the First Amendment. But if it’s bowing to government pressure, it’s helping a panicked government tear up one of our most basic freedoms.

And, no, the government’s campaign is not fully working. Internet “mirror” sites are springing up to host WikiLeaks’ material faster than governments can take them down. But WikiLeaks is the beneficiary, in this respect, of a wide swath of support from people who will make it part of their life’s mission to help prevent this particular instance of censorship from succeeding. How ready or able will they be to defend free speech every time it’s threatened in the future?

The political class’ frothing against WikiLeaks is to be expected, even if it’s stirring up the kind of passion that almost always leads to bad outcomes. But what to make of the equally violent suggestions from people who call themselves journalists?

Two Washington Post columnists, among many others, have been racing to see who can be the more warmongering. The reliably bellicose Charles Krauthammer invited the U.S. government to kill Julian Assange, while his colleague Marc A. Thiessen was only slightly less bloodthirsty when he urged cyber attacks on WikiLeaks and any other sites that might be showing the leaked cables.

Of course, the New York Times, Washington Post and many other news organizations in the U.S. and other nations have published classified information themselves in the past — many, many times — without any help from WikiLeaks. Bob Woodward has practically made a career of publishing leaked information. By the same logic that the censors and their media acolytes are using against WikiLeaks, those organizations and lots of others could and should be subject to censorship as well. By Krauthammer’s sick standards, the death squads should be converging soon on his own offices, as well as those of the Times and London’s Guardian and more.

Media organizations with even half a clue need to recognize what is at stake at this point. It’s more than immediate self-interest, namely their own ability to do their jobs. It’s about the much more important result if they can’t. If journalism can routinely be shut down the way the government wants to do this time, we’ll have thrown out free speech in this lawless frenzy.

Like Clay Shirky, I’m deeply ambivalent about some of what WikiLeaks does, and what this affair portends. Governments need to keep some secrets, and laws matter. So does the First Amendment, and right now it’s under an attack that could shred it.

Attacks on WikiLeaks are part of an attack on free speech, aided by the companies that make up the Web’s backbone

UPDATED

The WikiLeaks affair is highlighting the Internet’s soft underbelly: the intermediaries on which we all rely to store our information and make it available. We are learning, to our dismay, that we cannot trust them. Combine that with increasing government intervention, we’re also learning that the Internet is somewhat easier to censor than we’d assumed.

This should worry anyone who believes that we’re going to move our data and online lives into the fabled “cloud” — the diffused online array of hardware and services where, proponents say, we can do our online work, play and commerce without the need for storing data on our own personal computers. Trusting the cloud is becoming an act of faith, and it’s time to question that faith.

And the situation should absolutely chill everyone who believes in free speech — and especially the people who call themselves journalists. Sadly, however, too many of them have been cheering on people who want to make WikiLeaks disappear. Do they realize that it could be their own turn someday?

WikiLeaks has been under attack all week from governments that want to hide their misdeeds, not just legitimate secrets. That’s unsurprising, to put it mildly, despite the hypocrisy of official Washington’s loathing of Internet blocking in other countries while it works so hard to make it happen here.

The government and other anti-WikiLeaks forces don’t have even the thinnest legal case for taking WikiLeaks off the Internet, however — much less the news organizations, here and abroad, that are discussing the leaked diplomatic cables contained in the latest trove — and they know it. So they’re attacking the intermediaries, and they’re getting results.

WikiLeaks had put some of its trove on Amazon.com’s “Web services” servers — a system designed in part to help third-party websites meet extraordinary demand. But as the Electronic Frontier Foundation notes, WikiLeaks

found itself kicked off of Amazon’s servers earlier this week. WikiLeaks had apparently moved from a hosting platform in Sweden to the cloud hosting services available through Amazon in an attempt to ward off ongoing distributed denial of service attacks.

According to Amazon, WikiLeaks violated the site’s terms of service, resulting in Amazon pulling the plug on hosting services. However, news sources have also reported that Amazon cut off WikiLeaks after being questioned by members of the staff of Senate Homeland Security Committee Chairman Joe Lieberman. While it’s impossible to know whether or not Amazon’s decision was directly caused by the call from the senator’s office, we do know that Lieberman has proposed “anti-WikiLeaks legislation” and that he has a history of pushing for online censorship in the name of “security.”

Amazon’s statement isn’t just full of doublespeak and nonsense. It’s already been shown to be false in at least one respect: an untrue assertion that WiikLeaks was publishing willy-nilly the documents without vetting them to redact the names of people they might put in danger. In fact, as Glenn Greenwald has noted, news organizations have released far more of the documents than WiliLeaks has itself posted. But Amazon’s terms of service do give it the right to remove just about anything it chooses, for almost any reason or, effectively, no reason at all.

That’s Strike 1 to our faith in the Internet. We are all, to one degree or another, forced to rely on the good will of larger enterprises that host and serve the media we create online. So when a company as big as Amazon — and it’s huge in the Web services arena — yanks down content this way, it is demonstrating that we cannot fully trust it with our content, either. And if Amazon, a powerful enterprise, can be bullied, which one can’t?

Strike 2 came with the news that EveryDNS — a company that helps Internet users find specific Web addresses via the Domain Name System. — had booted WikiLeaks off its service. An analogy: Suppose your local library removed the card for a book you wanted from its catalog. The only way you could find the book would be to look through all the shelves. This is roughly what EveryDNS did.

Strike 3? Look at what the U.S. government has done in several recent cases involving alleged copyright infringement and other violations of intellectual property laws. Notably, the Department of Homeland Security seized 82 domain names based on allegations — with no notice to the domain holders and no proof beyond persuading a judge to sign a take-down order. This was accomplished even without the help of aproposed law, making its way through Congress, that would give the government the right to take down sites based, again, on allegations.

Between what’s already happened and the floodgates that would open with such a law, sensible people are terrified about the censorship power here.

You would imagine this would spur America’s journalists to raise the roof. Free speech is in jeopardy, and the people who should be protecting it with the most tenacity are talking about Julian Assange’s weirdness.

UPDATE: The Library of Congress has blocked access to the WikiLeaks site from its computers, saying in a statement quoted by Talking Points Memo:

The Library decided to block Wikileaks because applicable law obligates federal agencies to protect classified information. Unauthorized disclosures of classified documents do not alter the documents’ classified status or automatically result in declassification of the documents.

This is even more absurd than Amazon’s incoherent rationale. By this standard, the library should ban from its hallowed halls all kinds of investigative journalism that cited classified information, starting with gobs of material from the New York Times and Washington Post.

Such knee-jerk responses from people who should know better are beyond disappointing. Does the Librarian of Congress know about this? If he does, and if he supported the decision, he’s disgraced his profession and institution.

(Note: I’m an Amazon sharedholder and a supporter of the EFF. To that end, I donated some Amazon shares this week to the EFF, which I’m convinced at this point has a greater appreciation of free speech than does Amazon.)

Among others: How secret are diplomatic cables when 3 million people have access to them?

UPDATED

Once again, WikiLeaks has thrown governments and journalists into a maelstrom of fear, uncertainty and doubt. It’ll be weeks, if not longer, before we know the full scope of the diplomatic cables, but a few things are already clear enough.

What we know is being covered relentlessly here and across the Web. It’s what we don’t know that I’d like to note. So, here are some questions, many of which prompted by tweets and commentary elsewhere, for the major players in this drama.

For WikiLeaks and Julian Assange:

• When are you going to focus your relentless and often valuable energies on other governments, especially the ones that are even more noted for secrecy than the United States government, not to mention more repressive. Could you kindly find someone to liberate internal documents from, say, the Chinese government?
• You’re more secretive than the people you target, by far. When will you be more open about your own workings. And are you ready for the day when someone leaks your own internal records, beyond the relatively tame exposing (which you did post, to your credit) of some donor information?
• What kind(s) of deals are you making with news organizations, anyway? CNN said it refused the latest documents because it wouldn’t sign a confidentiality agreement. Then we learned that the Guardian shared the trove with the New York Times. Did the Guardian have a different agreement with you than the one CNN rejected?
• Some government is going to play you — and by extension the rest of us — for suckers, if this hasn’t already happened, by arranging a strategic leak of disinformation. How are you preparing for that?

For the U.S. government:

• Why did some 3 million people have access to much if not most of the diplomatic trove? That’s hardly keeping things confidential.
• (Update) Do you really believe WikiLeaks is better at ferreting out information than the secret services of semi-hostile powers such as Russia, Iran and China? Do you suppose they’ve long since had access to this stuff?
• Is stamping “Secret” on everything that moves helpful or detrimental to our national security?
• When it comes to invading other people’s lives, with increasingly oppressive security and surveillance, your mantra is “You have nothing to fear if you have nothing to hide.” Will you give that a little more thought in the future?

For journalists who get the documents directly from WikiLeaks:

• You are treating WikiLeaks as much as a partner as a source, no matter how much you might deny this. How comfortable are you in this bargain?
• Why does it take WikiLeaks to get the information you agree is so worthy of public exposure? Why aren’t you doing your own jobs better in the first place?
• Why aren’t you stressing, in your voluminous coverage, that these cables are not the final word on what has happened. They are often pure gossip. Do you have an obligation to provide more context for the material you’re publishing and discussing?

(Update) For Sarah Palin, who (or, perhaps, a staffer) tweetedtoday: ”Inexplicable: I recently won in court to stop my book “America by Heart” from being leaked,but US Govt can’t stop Wikileaks’ treasonous act?”:

• Treason is an act against one’s own country. Are you aware that WikiLeaks is not based in the United States, and that Assange is not a U.S. citizen?
• Are you saying you could have stopped Web and newspaper reports from other countries with U.S. court order? Can you find even one lawyer who agrees?

Those are just a few of the questions on my mind today. Do you have some? Post them below.

Not satisfied with our current Draconian rules, the copyright cartel aims for absolute power

In the surely-you’re-joking category, here comes the music industry to say it needs even tougher copyright rules. Sorry, no joke.

As CNET’s Declan McCullagh reports from a conference in Aspen, Colo., Cary Sherman, president of the Recording Industry Association of America, complained about “loopholes” in the current copyright system. But what he calls loopholes are among the few parts of the law that remotely temper the absolute control that the RIAA and its allies, mainly in the movie business, want copyright holders to have over everything digital.

Specifically, the entertainment industry is looking to enforce copyright by getting third parties to do some of the dirty work. In particular, the industry wants companies such as search engines and Internet service providers — the latter is typically your phone or cable company — to keep an eagle eye on what you do with your own computer, inspecting what you download and upload in granular ways. This is the rough equivalent of getting your phone company to listen to your calls to make sure you aren’t planning anything illegal.

The way the entertainment companies are trying to make this kind of thing work in other countries is to get ISPs to shut down users’ access after accusations of infringing behavior, with harder punishments also a possibility. A legal battle royal is under way in France and the European Union over this insane policy.

What the cartel wants, essentially, is to make all the decisions about how what it produces may be used in any way. This flies in the face of tradition and law, and would inevitably lead to a regime under which we would all need permission to use digital content for any purpose whatsoever.

As Internet access consolidates into the hands of a few companies, these threats become more serious, not so much because the ISPs want to be spying on you but rather because they may be forced to do so. Let your ISP know you won’t be happy if this happens.

District loaned laptops to students, then used spyware to take pictures of them. Prosecutors: No “criminal intent”

Federal prosecutors are showing uncommon sympathy for some Pennsylvania school officials who spied on students via webcams in their school-owned laptop computers: They’ve decided not to prosecute.

The reason? ”For the government to prosecute a criminal case, it must prove beyond a reasonable doubt that the person charged acted with criminal intent,” the U.S. Attorney’s office said in a statement. “We have not found evidence that would establish beyond a reasonable doubt that anyone involved had criminal intent.”

Let’s leave aside the fact that people are charged all the time for criminal offenses despite having no idea they’re committing crimes. And since when did ignorance of the law confer immunity?

Let’s focus instead on the fundamental creepiness in what happened at the Lower Merion School District in suburban Philadelphia. A lot of the facts and fuller context in this privacy debacle remain murky. Let’s hope that the discovery process in the several civil suits results in a more complete disclosure, but we do know this:

The district loaned laptop computers to students and then, under a program the district said was aimed at recovering lost or stolen machines, used spyware to capture tens of thousands of images of kids. Some of those images, it emerged in civil suits filed against the officials, were taken in students’ homes — and some of those in their bedrooms. Oh, just a terrible mistake, said the district.

Some 38,000 images from six computers alone, not to mention video chats and IMs in at least one case? If this is an oversight, a mere mistake, yike. But if so, the people who were that sloppy shouldn’t be trusted to teach elementary arithmetic or anything else.

There’s apparently no state law against this kind of thing. That’s outrageous by itself. And while the feds have concluded that they can’t pursue criminal charges, no one should even consider letting the school district off the hook in any moral way for its reprehensible behavior.

The case also reminds us that civil lawsuits play a vital role in our society. Yes, some plaintiffs’ lawyers launch meritless lawsuits and cause wide harm. But sometimes, as in this case, they are the last line of defense when powerful institutions beat up on individuals. We forget that at our peril.

Ominous references to the “public Internet” inescapably suggest something else entirely

So Google and Verizon had not, in fact, cooked up a special business dealfor their mutual benefit. But what they have cooked up, as announced today, may be no great deal for you and me: the idea of a parallel network that could, in the long run, become the default network — at the very least for entertainment and truly advanced services.

At first glance, no one could argue with what the companies’ CEOs, Eric Schmidt and Ivan Seidenberg, announced on Monday: A “joint effort by two companies to offer a suggestion” to public policy makers, as Seidenberg put it. (Both CEOs denounced last week’s media hyperventilating, based on stories in the New York Times and Bloomberg News, as bogus journalism, though they didn’t use that precise phrase. “There is no business relationship,” Schmidt said on a conference call.)

Their suggestion? Essentially, it was to insist that the Internet should remain open and freely available, with enforcement teeth to ensure what most people would call network neutrality, the idea that carriers can’t discriminate against one content provider in favor of another.

But the proposal went further. It would promote the expansion of new services, not part of the  Internet as we know it now, that would go beyond anything we have today. These new services, if Congress and regulators enacted the companies’ proposal, could not be designed to be end runs around net neutrality; they would have to be genuinely new.

But here’s the rub: You should not trust Verizon or other carriers, or Google for that matter, to follow through in ways that are truly in the interest of the kind of open networks the nation needs. Throughout the conference call, we kept hearing references to the “public Internet” — an expression that leads inescapably to something else.

If Schmidt was telling the truth when he said Google’s overwhelming focus will remain on the public Internet, such as his promise that YouTube will remain there, that’s great. I have no reason to disbelieve him, and Google’s track record to date is strong on this issue. But plans change, managements change, and corporate goals change.

The other big news in today’s announcement was Google’s clear retreat on network neutrality when it comes to wireless networks. As Susan Crawford, professor at Cardozo Law School and an expert on all things Internet, explains: ”That’s a huge hole, given the growing popularity of wireless services and the recent suggestion by the Commission that we may not have a competitive wireless marketplace.”

For Verizon’s part, the acceptance of what sounds like fairly serious neutrality rules on current wire-line networks was welcome. But I see the rest as a Trojan Horse for a modern age. Verizon and other carriers have every incentive, based on their legacies, to push network upgrade investments into the parallel Internet, not the public one.

With one exception, the carriers have all but abandoned their push to bring the kind of wired-line bandwidth that other nations — Japan, South Korea, France and Sweden come immediately to mind — have done. Verizon has all but stopped building out its fast fiber-optic network to homes, leaving Comcast as the provider that is most ardently boosting connection speeds via its cable lines. (Even Comcast’s fast speeds are nothing special next to what carriers in those other nations have provided.)

So when Seidenberg said, “We have to be flexible,” my immediate thought was, uh-oh.

I’ve been worried for years that the game was on to turn the carrier-controlled Internet into just another version of television. Maybe the carriers won’t get away with that.

The right way forward is to have sufficient bandwidth that we can do pretty much anything we choose using public networks — a true broadband infrastructure where packet-switched services (moving data around, at super-fast speeds, in little packages that are reassembled at the user’s device) are the basis for all communications.

Instead, the game is on to create a parallel Internet. It’ll still be packet-switched. But they won’t call it the Internet anymore. That’s an end game we should not encourage.