OLD MEDIA TAKES DIBS ON FREE SPEECH  

Here we don't reveal Ron's full name; the July 3 edition of the Omaha World-Herald did. It also printed a picture of him, revealed where he works, what kind of car he has, and even included a photo his license plate. The newspaper told readers the location of the neighborhood in the small town where he lives with his wife and two kids in a split-level home.

Is Ron a child molester released through a miscarriage of justice? A serial killer? No, he's "John Doe" in "ACLU Nebraska and John Doe v. the City of Plattsmouth," a 2001 lawsuit to remove a Ten Commandments monument from a public park.

The Omaha newspaper gave no reason why they revealed his identity, despite reported threats to kill him, firebomb his house, and beat his son. No explanation was offered as to why the public had a compelling need to know all about Mr. L. and his anti-religious writings dating back to his high school days. The only possible hook in the article to justify exposing him came from Pat Robertson's American Center for Law and Justice, which is defending the town free of charge: "It seems to me if you want to challenge government policy, you ought to have the guts to say who you are."

Once World-Herald readers finished this front page investigative story exposing John Doe to his threatening neighbors, they could turn to the editorial page, and read the newspaper's defense of anonymous sources. Without a hint of irony, Omaha's editorial board room insisted that it was important to protect the identities of "those who cannot or don't want to be quoted."

The subject of the editorial had nothing to do with Ron L. of course -- it was a plea for a federal shield law to protect the likes of journalists Miller and Cooper, who were then both facing jail for contempt of court in the Valerie Plame case. On that weekend and in the days surrounding, probably every newspaper in America ran a similar commentary, lamenting the developments as yet another erosion of the First Amendment rights of the press.

Similarly, editorial writers rose as one in mid-June to applaud as the House of Representatives voted to make it harder for officials to secretly gather information on who's checking out books at the library or buying them at a bookstore. In truth, this isn't much of a threat; the American Library Association has cataloged 137 incidents since 9/11, and the worst example given was the FBI responding to a complaint that someone had written in the margins of a bin Laden biography (the library's board voted to refuse to cooperate with the Bureau).

Print and broadcast media like to lead the parade of First Amendment defenders. Offering the occasional grandstand on behalf the First also has a self-serving purpose: "See? We don't always focus on the peccadilloes of Jacko and Tom and Katie and missing young white women." But the American press is really a fair-weather friend to the First, quick to speak up when it's a safe and popular thing to defend, and quiet when it's seriously threatened -- particularly, it seems, when the competing media of the Internet is involved.

Also in June, the Federal Election Commission held hearings to determine whether political commentary on the Internet deserves to have the same rights as traditional media: Was it a campaign contribution to state, "Vote for John Kerry?" Not if you're working for a newspaper or broadcaster, which has a "media exemption" to endorse whoever or whatever it pleases.

But what of the website urging visitors to vote for Kerry? Was its owner making an in-kind contribution to the candidate? If so, then campaign finance rules might apply, complete with spending caps, requirements to file regular FEC reports, and all the other stultifying demands made on big contributors with paid staffs to handle the paperwork. It's a Bizarro-World argument, as conservative blogger Michael Krempasky, founder of RedState.org, testified at the hearings: "What goal would be served by protecting Rush Limbaugh's multimillion-dollar talk radio program, but not a self-published blogger with a fraction of the audience?"

In fear of possible new rules, some bloggers are now scrambling to retitle their offerings as online magazines, as if that were enough of a talisman to keep the hobgoblins at bay. But even if the FEC threat goes nowhere, bloggers and other Internet publishers have reason to fear some kind of clampdown looms; the Bush administration is eagerly creating new regulations in the name of fighting the Terror War -- as well as the old threat of child pornography.

Just passed into law is 18 U.S.C. § 2257, which aims to quash Internet child porn by requiring website owners to maintain records proving all the people shown on the site were of legal age. Copies of the all performer's photo ID must be kept for at least five years, and be available to federal inspectors who make unannounced visits to the street address that must be provided on the website. As civil libertarian group EFF (Electronic Frontier Foundation) notes, the new regulations also expand the definition of a so-called "secondary producer" of materials to include anyone "who inserts on a computer site or service a digital image of" sexually explicit conduct.

Could you show us some ID, please?

The bad news in the poorly written law is that there is no flexibility; besides the always-mushy definition of pornography itself, there are no exemptions at all. Thus a blogger who uses a picture of Abu Ghraib prisoner abuse risks up to five years in the slammer if he or she doesn't have Lynndie England's photo ID -- or worse, can't offer definitive proof that the poor devil at the bottom of the infamous naked pyramid is 18 or older.

Even if bloggers escape FEC oversight and Justice Dept. shackles, there's plenty reason for the average Internet user to worry: The House just voted to extend Section 215 of the Patriot Act for another decade instead of allowing it to sunset in December. This was probably the worst part of the Patriot Act; it allows the FBI to scrutinize "any tangible thing" in the life of any American as long as they claim the search protects against terrorism.

Usually mentioned as examples are medical and financial records as well as the old favorites, bookstore and public library reading materials. But there's probably not a lot of evidence of terror activity lurking in doctor visits and old utility bills; far more interesting pickin's for the FBI would be records of someone's Internet activity -- particularly if the records went back several months, or even years. Another part of the Patriot Act, Section 216, already allows a type of Internet wiretap to collect "non-content" information, such as IP and e-mail addresses, but that's only after the fact and offers just a glimpse at the motherload of information that could be gathered under the broad snooping powers of Section 215. Imagine what could be learned about even the casual Internet user by prowling back through every e-mail, every website visited, every instant message. The mind, it boggles.

For now, the FBI is kept from rummaging around in someone's on-line past because of technical, not judicial obstacles. No ISP saves customer data like that; while an Internet provider will log that an e-mail from the user at address 1.1.1.1 was sent to mary@aol.com at exactly 13:06:47 GMT, no copy of the e-mail itself is preserved -- and even that tiny log entry is usually deleted after a few days or weeks. But that may change, if the Bush Justice Dept. has its way.

At an April meeting between Department representatives and Internet providers held in Virginia, it was reported that the DoJ officials pushed hard for ISPs to accept new data retention policies that would potentially keep all customers records around for at least two months. But the reason given wasn't the Patriot Act and the need for better terror-fighting tools: the data must be kept, they said, to combat the scourge of Internet child pornography.

"It was raised not once but several times in the meeting, very emphatically," Dave McClure, president of the U.S. Internet Industry Association, told news.com in the only article to report on the meeting. "We were told, 'You're going to have to start thinking about data retention if you don't want people to think you're soft on child porn.'"

McClure also said that the Justice Department wanted ISPs to cooperate voluntarily, but raised the "possibility that we should create by law a standard period of data retention." In the news.com story, McClure added that "my sense was that this is something that they've been working on for a long time."

Yes, they have. A year after 9/11, it was announced that the Pentagon was working on the mother of all privacy invasions, the Total Information Awareness (TIA) project. The goal was to gather all possible information from private and public computer systems in order to build profiles of people and predict who was likely to become a terrorist. Part of that analysis -- or "wargaming the asymmetric environment," in Pentagon-speak -- was to examine the suspect's political, cultural, and ideological environment. The big-brother database and thought-crime analysis was too Orwellian even for Congress, and TIA funding was dropped in September 2003. Although the project never went beyond the initial planning stage, parts are assumed to live on in various "black budget" projects.

Data retention suddenly became a hot-button issue in England following the London transit bombings. A few days after the attack, Home Secretary Clarke called an emergency summit with his European Union colleagues in Brussels to discuss anti-terrorism measures. There Clarke apparently pushed for user data to be stored for at least a year, and maybe indefinitely. As of now, it is unclear how far the Brits are prepared to go; the BBC recently quoted Clarke as saying they only seek "non-content" data, but other reports have him demanding that copies of everything be archived.

Few details of the anti-terror summit appeared in the U.S. press, aside from noting it happened and using a choice quote from Clarke ("It is a fundamental civil liberty of people in Europe to be able to go to work on their transport system in the morning without being blown up"). His emphasis on capturing Internet and phone data was described only by three articles: one each in the Christian Science Monitor, the IPS wire service -- picked up only by the Albion Monitor -- and the Moonie-owned UPI service, whose story only appeared in the World Peace Herald, also owned by Rev. Moon. Granted, coverage of a nerdy topic such as overseas data retention may be too much to expect of the American press, but why didn't its prominence at the summit set off alarm bells for political columnists who made such a ruckus over the proposed TIA database? Answer: Few probably knew about it because of the shallow U.S. news coverage. Circle, complete.

The march of shame goes on: Only a single newspaper article has mentioned the new "secondary producer" provision of the anti-porn statutes, and that Denver Post story doesn't touch the possible free speech ramifications that worry EFF and other civil liberties groups. And as for the FEC's hearings on blogger regulation, mainstream media coverage was limited to a single June 28 AP story and a small Washington Post article that appeared two weeks later. Not a single editorial or column from a major media outlet can be found expressing concern that some writers may be required to register with the government to express political opinions.

To be fair, it must be pointed out that the U.S. media isn't just doing a poor job reporting free speech and privacy threats to the Internet; the press also did a perfectly miserable job explaining the sweeping dangers that lie in the Patriot Act's Section 215. When the House voted July 21 to give a ten-year extension to that part of the law, only about one story in ten mentioned its all-inclusive "tangible things" language. By contrast, over half of the media coverage noted that Section 215 would be amended to have more library and bookstore protections, including the requirement that the FBI director personally approve law enforcement requests for such information.

Of course we need to protect the privacy of library and bookstore patrons, and of course journalists shouldn't go to jail for doing their jobs. These are important First Amendment issues -- try and find someone to argue against them. (Okay, try and find a sensible person to argue against them.) But all of the other issues discussed above are far more likely to impact the First Amendment rights of you and every other American. And maybe on a meaningful daily basis.

Broadcast and print media failed the public by not clearly explaing that the controversy over Patriot Act's privacy intrusions stretched far beyond peeking at library cards. Americans still need to know that political free speech on the Internet is very much at risk, and that Tony Blair is racing to turn the Internet into a surveillance tool, with friend Bush likely not far behind. But in print and on the air, such matters are not spoken of. The public deserves to know of these things, as well as why the press avoids mention of them. As for the Nebraska newspaper that outed the ten commandments-guy: Not a single mainstream media source can be found condemning the Omaha paper's outrage. Whether this silence is from indifference, from laziness, or a shared contempt for the man and his family's safety, it doesn't matter: silence still speaks volumes. When First Amendment rights are in jeopardy, silence is always shameful.   (July 31, 2005)