This week, our first place winner on the insightful side comes in response to the FCC’s refusal to release certain records to a FOIA request. David noted that their reason — “to prevent harm to the agency” — was a big problem:
It’s not the job of the agency to prevent harm to the agency. It is the job of the agency to prevent harm to consumers. The ones paying its salaries. The FOIA act ensures that the employers of public officials have the means to make sure that the officials are doing the job they are being paid for by the people.
If that would be detrimental to the good of the agency, the good of the agency is not aligned with the good of the people and salaries are obtained under fraudulous pretenses.
Basically the answer is “Accountability? I beg your pardon, we are criminals!”
In second place on the insightful side, we’ve got That One Guy with a response to the perennial and patently silly accusation that we are partisan hacks:
If you didn’t notice those sorts of articles cropping up as often when Obama was in office, perhaps it’s because he wasn’t engaging in such actions nearly as much as the current administration.
He was criticized plenty when he did something wrong, if Trump and team get criticized more it’s probably because they’re doing more worthy of being criticized.
For editor’s choice on the insightful side, we start out with a comment from Roger Strong, who took the common light comparison between internet platforms and telephone companies and expanded on it, and its connection to one of the biggest myths about CDA 230:
And there were court battles over exactly that, a century or so ago. The upshot was that the phone companies weren’t liable.
Online services had battles over this before the Communications Decency Act:
In 1991 Cubby v. CompuServe ruled that CompuServe was merely a distributor, rather than a publisher. It was only liable for defamation if it knew, or had reason to know, of the defamatory nature of content in its forums. Since it wasn’t moderating them, it didn’t know.
In 1995 Stratton Oakmont v. Prodigy went the other way. Prodigy moderated its forums, wanting a family-friendly environment. And so the court ruled that it was liable for what was posted.
All of which could only mean one thing: Online services that chose to remain ignorant of their content were immune from liability. Those that moderated content, even in good faith, assumed full publisher liability.
1996’s CDA 230 changed this. It’s now safe to make good faith efforts to prevent criminal activity. Remove 230’s protections, and we may go back to “ignorance is safety.”
Which would be a gift to the criminals, though those who want to kill CDA 230 will deny it.
Next, though by now there is plenty of analysis of the Nunes memo from every angle, our second editor’s choice is a nod to the anonymous commenter who provided one of the meatiest comments in the Techdirt discussion on the topic:
Two key points from the Nunes memo
In a stunning case of “own goal”, the very end of the memo points out that the FBI had an investigation going long before the Steele memo (which isn’t a memo at all, but a series of reports) came along. There are two reasons that the FBI paid attention to the Steele memo: (1) Steele has a reputation, a very good one, along with lots of experience and a sizable network of contacts (2) the contents of Steele documents matched things THEY ALREADY KNEW TO BE TRUE.
The second point bears some explanation, because most of you don’t have jobs that require the assessment of raw intelligence that comes from multiple people who may be omitting things or fabricating things or deliberately embedding some truth in a web of lies. The Steele memo is just that kind of raw intelligence, which is why — if you take the time to read it — you’ll notice that Steele himself points out the possible presence of these issues.
But when you get your hands on raw intelligence, and it gives you — let’s say — 100 facts that you can check, and you find that 82 of them are true, 16 are unverifiable, and 2 are false — then you have good reason to think that at least some of those 16 are worth further investigation because they may well turn out to be true. That’s why you get a warrant: first, to re-re-re-verify the 82 and second, to find out about those 16. That’s your JOB.
Then of course you have to make some progress. Because if you don’t, then you’re not going to get multiple judges to renew your warrant multiple times. You might still not be able to check all 16 of those outstanding items, but if you can check 4 and make progress on 7, then you’re getting there and it’s reasonable for a judge to grant more time. If you can’t check any of them, then maybe you’re barking up the wrong tree and the warrant you seek isn’t going to help anyway.
One more thing. This isn’t an edge case. Anyone who goes out of their way to pal around with intelligence agents from another country, even a friendly one, should expect that they’re going to get surveilled: by us, by them, and by third parties who are of course interested in such things for reasons of their own. And anyone who openly brags about it should REALLY expect scrutiny. I have no great love for the FBI, but in this case, they did exactly what any sensible organization should do: start watching people who are heavily interacting with known agents of a hostile foreign power.
Over on the funny side, instead of a first and second place winner, we have a rare perfect tie for the top spot, both from anonymous commenters! So in no particular order, we’ve got a response to apologists for the aggressive use of copyright on Martin Luther King Jr.’s works:
Yes, without copyright protection there would have been no incentive for Dr. King to make speeches!
Next we’ve got a reply to some rant or another by one of our loopier critics:
The Techdirt logo doesn’t have a gold border. Under the Banana Republic Second Circuit Court of Captain Kangaroo, I hereby place you on time out from your silly postings.
For editor’s choice on the funny side, we’ve got a one-two punch on our story about the FCC patting itself on the back for its incredibly stupid first year. An anonymous commenter chimed in early:
Figuratively speaking. To be specific, they mandated that the FTC do the actual back-patting for them.
Then XcOM987 added a further thought:
If all goes to plan though the FTC won’t have the authority to pat the FCC on the back
That’s all for this week, folks!
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Author: Leigh Beadon