July 22, 2016

Judgment days

US-Supreme_Court.jpgAs if the last few weeks weren't sufficiently full of surprises, this week several more showed up like rare Pokemon characters in the form of remarkably sensible judgments in court cases that form part of several chains of long-running disputes.

The first is the Microsoft case concerning international jurisdiction, significant because it will doubtless prove to be one of the first salvos in a lengthy process of deciding who gets access to what and where in a connected world.. The case began in December 2013, when a New York district judge issued a warrant ordering Microsoft to turn over to US authorities the contents of emails stored on its servers in Ireland. The US government argued that since Microsoft could access this data from within the US, it had the right to compel the company to do so. Microsoft argued that EU fundamental rights - that is, data protection law - applied, and that the US should make a formal request to the Irish government using the Mutual Legal Assistance Treaty (MLAT). The government argued in return that since Microsoft is an American company, MLAT was not necessary. The Second Circuit Court of Appeals has now ruled in favor of Microsoft.

As I understand it from various discussions, law enforcement tends not to like MLATs much. The process involved in making such requests is slow; last year, the Information Technology Industry Council asked Congress to provide more funding to eliminate the apparently growing backlog; like Microsoft, they wanted governments to follow legal procedures instead of bypassing them by making direct requests to the companies themselves.

As crime - and therefore investigation - becomes increasingly international, this is clearly an important issue for all concerned. Even given the difficulties, it seems clear that granting governments direct access to whatever data they want via direct arrangements is a bad idea, as it allows little transparency and no documented trail of accountability. It seems to be in all our interests to improve the MLAT process to eliminate the temptation to bypass them. The Center for Democracy and Technology, while welcoming the ruling on the basis that it avoids "a parade of horribles", warns that the government will likely appeal.

Tom_watson_communia2009_cropped.jpgThe second case, which dates to 2014, was the case brought against the UK government by the MPs Tom Watson (Labour - West Bromwich East) and David Davis (Conservative - Haltemprice and Howden) over the passage of the Data Retention and Investigatory Powers Act (2014) Last year, the High Court ruled in their favor, finding that the Act is incompatible with the right to private life and the protection of personal data enshrined in the EU Charter of Fundamental Rights. The government appealed, that this week the European Court of Justice has indicated it, too, will rule in Watson's favor. Last week, Davis was forced to withdraw when new Prime Minister Theresa May appointed him to the cabinet. Apparently you can't sue the British government while being part of it. Philip K. Dick would be so disappointed.

There are of course caveats: the ECJ's advocate general said that the fight against serious crime might justify bulk data retention - but that ordinary offenses and civil matters would not. This has ramifications for the Investigatory Powers bill, currently under consideration in the House of Lords and which reflects much the same approach as DRIPA. What the government will do now is an interesting question. Groups such as Privacy International, Liberty, and the Open Rights Group have argued all along for better safeguards, and that targeted, rather than bulk, surveillance is both more compatible with human rights and a better, more effective method of investigation. But will the UK government listen? Or will Theresa May - who has made her name advocating the policies the court has just indicated it will rule against - simply shrug and take the view that the ECJ's opinion is irrelevant since the UK's departure from the EU will remove it from the court's jurisdiction?

Finally, over in the torrent wars, the High Court of Paris has ruled that search engines do not have to censor torrent links (or in French, at NextImpact).This in the same week that the world's largest torrent site, Kickass Torrents, was seized and its owner arrested after investigators used historical data to match IP address, Facebook account, and real-world identity sourced from an iTunes transaction, a rare worked example of the power of data matching. As Charles Arthur noted in this morning's Overspill, it's nicely ironic that the alleged owner of a torrent site got caught in part because he made a purchase on iTunes (PDF).

In the French case, the French music industry association SNEP wanted the court to require Google and Bing to block search results featuring the word "torrent" and any of the names of the artists Kendji Girac, Shy'm, and Christophe Willem. Microsoft argued that such filtering would be "imprecise, disproportionate, and inefficient". So, the court made a sensible response to the old problem of blunt-force blocking. I assume SNEP can try again with a more precise, more proportionate, and more efficient version of the same request. Maybe one that wouldn't block a search to this piece, for example, which also features those artists' names and the word "torrent".

I feel sure this is just a brief summer outbreak of sanity.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

July 15, 2016

New tricks

Investigative journalism has long been a hard sell: it's time-intensive and expensive to produce, and even more expensive to defend if you really rile someone. Time magazine spent ten years and $7 million defending its 1991 story on the Church of Scientology. What mainstream outlet can afford that now?

Some of it has long since moved to NGOs, which (unlike politicians) require facts in order to campaign successfully. One of the best examples is Big Brother Incorporated, a project for Privacy International in which Eric King did all the things that investigative journalists do: he went to trade shows, listened to what the companies were telling their customers, and read their financial reports. The resulting stories were blasted across the world by mainstream newspapers - but they weren't the ones who did the work.

Now, it turns out that the risky, hard-hitting stuff is finding another home, in small, independent cooperatives that are beginning to reinvent local journalism, one of the most significant market failures in recent times. In the US, many formerly local newspapers got bought up by chains and turned into wire service clones. In the UK, news, like government, seems to flow more naturally from the center.

Yet every neighborhood has issues that residents are passionate about. So my theory has lonng been that for sufficiently motivated people it ought to be possible to restart journalism from the ground up by canvassing neighborhoods for people who were willing to pay a modest stipend to get good reporting on all those local issues: council and school board meetings, planning applications, local corruption, and so on. In the UK, your best shot about finding out about the last of those is the satirical weekly Private Eye - its "Rotten Boroughs" section makes excruciatingly depressing reading.

This week, the annual summer school run by the annual summer school run by the Centre for Investigative Journalism, there were two examples of the kind of local-based independent projects that point the way to at least one piece of a possible future: the Bristol Cable, founded in 2013, and Scotland's year-old The Ferret.

bristolcable-cover.jpgFor the Bristol Cable, Alec Saelens and Lorna Stephenson explained that the risk-averse Bristol media, compromised by their dependence on advertising and local relationships, left the need for something different that genuinely served the public interest. Wanting something different, the group formed a cooperative, held workshops and meetings, and after about a year and a half had pulled together sufficient support to launch the paper. A year and a half after its launch, the Cable is supported by four revenue streams: membership subscriptions, which they hope will consistently be the leading stream; grants; carefully selected advertising; and external engagements. In the last year, both membership (now around 1,200) and the size of their print run have tripled (now 30,000).

Print? You betcha. "It's a way to make sure it's shared across the city," Saelens explained.

The group plans to build partnerships with like-minded organizations across the city and provide journlaism training for people who wouldn't normally have access to it. Most interesting, they believe their model of cooperative production is replicable, and they are trying to develop guidelines to help other groups wanting to do the same thing for their cities.

ferret-folks.jpgMore or less during the same period,, freelance journalists Rachel Hamada and Peter Geoghegan, among others, were pondering how to create The Ferret to fill a similar gap. Like the Bristol group, they decided on coooperative ownership and benefited from an early £1,500 grant from Cooperatives UK. In the interests of keeping expenses low, however, they've so far avoided print, though it sounds like it's something they might consider for special occasions in future.

After some consideration, The Ferret's founders began by seeking crowdfounding for one project and consulting the funders to choose what it should be. In the end, they picked fracking, which led to a substantial package of stories such as mapping where companies wanted to frack first and discovering that anti-fracking campaigners had been branded terrorist threats in anti-terror training materials published by Glasgow City Council. Since then, they've investigated the House of Lords' expenses, Facebook censorship, and much more. Two of their most-recurring topics are surveillance and domestic violence, both of which they feel are underserved in the mainstream press. Stories they've published have been picked up by or published in tandem with mainstream outlets.

They have so far managed to keep the operation very cheap: it has no offices. They all work remotely, communicating via email and Slack. Editorial decisions are made by consensus, they're signed up to Impress, and they've put some effort into developing a complaints policy. They also find they need to put some effort into ensuring subscribers stay engaged and active through meetings and other events. Unlike the Cable's crew, they were all already experienced journalists, which may explain their almost quaint insistence on paying everyone for the stories they write. ("We're just chancers," Saelens cheerfully responded.)

They are finding that two things they were told at the beginning would never work are not so far proving true: 1) a paywall would never work; and 2) populist subjects are essential for success.

Yes, both these operations are extremely small. "These are very humble beginnings," Geoghegan said. But even the oldest, biggest newspapers - or The Skeptic - had to start somewhere.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.