http://www.cfac.org/content/index.php/cfac-news/ en jshiroma@durationpress.com Copyright 2008 2008-05-09T05:21:00-08:00 http://www.cfac.org/content/index.php/site/comme/ http://www.cfac.org/content/index.php/site/comme/#When:05:21:00Z Vallejo’s bankruptcy highlights need for transparency in city-union contracts By Peter Scheer The city of Vallejo has taken the extraordinary step of filing for federal bankruptcy protection. While the financial distress of this San Francisco suburb (population 117,000) is especially acute, its fiscal problems are fundamentally the same as those facing many California cities and counties--and, indeed, the state itself. To the familiar litany of causes--falling sales tax revenue, the home mortgage crisis leading to collapsing home prices and lower real estate taxes--there needs to be added one more: Too much government secrecy. Vallejo is broke, and other cities and counties may be close behind, because their personnel costs--salary and benefits for current employees and retirees--are higher than they can afford. While decisions at the state level are partly to blame, ultimate responsibility for the mismatch of revenue and expenses rests with local elected officials who, meeting in secret, have managed to avoid public discussion of the true cost and fiscal impact of the pay deals that they have approved. If no one is watching, it’s easy for public officials to give generous pay and benefit increases without having a clue how to pay for them. That’s not so easy to do in a public session, where voters demand to know how much taxes will have to be raised, and how much other expenses cut, in order to make good on the promised increases in compensation. Such resistance is called political accountability, and it obviously depends on public access to the meetings in which elected representatives make their decisions. Although in theory legislative bodies in California must operate in the “sunshine,” the Brown Act, the state’s open-meetings law, carves out a huge exception for negotiations with public employee unions. The combined effect of this exception, and separate provisions of the labor code, is to close the door, pull down the shades and turn off the lights on virtually all decisions relating to employee compensation and other terms of union contracts (“collective bargaining agreements”). Negotiating positions are determined in secret, negotiations themselves are conducted in secret, and negotiated contracts are ratified in secret. By the time the public gets to see the compensation provisions of a new union contract, it is already a done deal--indeed, any effort to change the terms likely would be a breach of the contract. This cozy arrangement is very much in the unions’ interest, since transparency would risk public opposition, and very much in politicians’ interest, since they get to be generous with public funds without having to be responsible for them. Only one party is screwed: the public.  Vallejo’s resort to bankruptcy court is a catastrophe, not least because it reflects the total collapse of the city’s political process and the surrender of its sovereignty to an unelected federal judge. If filing for bankruptcy doesn’t humiliate city officials, it’s hard to imagine what would. For all its problems, however, bankruptcy proceedings at least will be conducted in public, all legal and factual documents in the case will be open to the public, and the people of Vallejo will have their first real opportunity to understand the true costs of city employees’ pay and benefits, as well as the options for bringing costs in line with revenues. For unions, bankruptcy court is a potentially costly defeat. The judge has the power not only to protect the city from its creditors, but also to void the union contract and, in that way, force city employees to accept a pay package in keeping with the city’s capacity to pay. The union has none of the leverage with the judge that it had with Vallejo’s elected officials. It can’t lobby the judge or give him campaign contributions, obviously. Having overplayed its hand, the union now finds itself in the uncomfortable position of having to justify, in a public forum, its claims to the city’s limited, and declining, resources. Vallejo is the first California municipality to declare bankruptcy in the current economic downturn; others are likely to follow, unfortunately. These debacles are sure to have repercussions in Sacramento, as legislators consider measures to prevent cities from reaching the financial abyss into which Vallejo has fallen. Of all the steps they could take, the most important would be to end the secrecy surrounding public employee contract negotiations. ===== Peter Scheer, a lawyer and jouralist, is executive director of the California First Amendment Coalition. This article also appears on Huffington Post. 2008-05-09T05:21:00-08:00 http://www.cfac.org/content/index.php/site/commentary25/ http://www.cfac.org/content/index.php/site/commentary25/#When:16:50:00Z Make no mistake, China’s censorship of the internet is a crime against liberty on a mass scale. Still, American firms can’t just steer clear of the world’s biggest market. What to do? By Peter Scheer A milestone of sorts was passed in the first quarter of this year when China blew past the United States to become the biggest internet market in the world. At 225 million users, and still growing at double-digit rates, China’s internet is a business opportunity so grand and irresistible that it can blind normally circumspect people to the moral compromises that cooperation with Chinese government authorities inevitably entails. I experienced this first-hand when, about a year ago, I made inquiries at the China offices of a number of American law firms to ask for help in comparing internet search results for searches performed inside China--within the “Great Firewall” of government censorship, as it is called--with the same searches performed from locations outside China (and therefore outside the firewall). The law firms demurred, explaining, with commendable candor at least, that they could not risk being observed submitting to Google and Yahoo search terms like “Tiananmen Square” or “Falun Gong”. Mind you, these were American-trained litigators, the kind of lawyers who barely flinch in the face of a grand jury subpoena, and who spend their careers pushing back against the demands of government authorities. While usually immune to intimidation, they nonetheless feared the repercussions to themselves, their firms, and their clients from the mere act of typing a few search terms into an internet-connected computer. So seductive are the business opportunities in China that the risk of losing them transforms even hardened litigators into wimps. In conversations with internet entrepreneurs and investors active in China, one often hears arguments that are more rationalization than logic. An internet CEO recently told me that freedom of speech is a “relative” value that, despite its appeal in western democracies, is not appropriate to China. Popular variations on this theme are that freedom of speech is an unaffordable luxury in a country that must be single-minded in its pursuit of economic development; that the people of China are more interested in consumer goods than personal and political freedom; and that westerners’ pressure on China to be more tolerant of dissent is a form of cultural imperialism. Let’s be clear: Freedom of speech, freedom of political choice, and the rule of law are not relative values; they are absolutes. China’s regime of internet censorship is, without question, a crime against individual liberty on a truly mass scale. That it coexists with a fast-modernizing economy offering its people considerable choice in the economic sphere only makes the curtailment of personal freedom more offensive because less excusable. China does not need to suppress speech to achieve its economic goals. China’s leaders are more cynical than that. They maintain censorship solely to preempt challenges to their monopoly on political power. This can be seen in the government’s censorship policies. Websites based inside China are subject to content restrictions that are, by design, so uncertain and unpredictable that they force internet companies to censor themselves. Standards that are unknown and unknowable, backed by the threat of license-revocation for companies and jail for individuals, create a pervasive fear that is far more effective than direct regulation at muting opposition to the government and its policies. Websites based outside China, meanwhile, are subject to blocking by the Great Firewall based not on their content, but on their capacity to create, inside China, large, voluntary online communities that are independent of the government. These include nearly all blogging services, wikipedia and wiki platforms generally (wikileaks included), social networking websites and peer-to-peer technologies of all kinds, including photo-sharing and video-sharing businesses. In other words, the full panoply of internet 2.0 technologies. Websites commanding vast audiences for user-generated content are seen by authorities as a grave threat. The Chinese government’s worst nightmare, after all, is a lone and anonymous Tibetan uploading to YouTube grainy cellphone videos of rioting police. What should American internet companies do? To point out that doing business in China is morally compromising is not to say that companies must forswear the world’s biggest market--hardly a realistic option, in any event, for premier internet firms like Google, Yahoo, MSN, and Amazon. And while these companies might prefer to compete in China remotely--basing their servers outside the Great Firewall--government policies force them to set up shop inside China. Those policies manipulate the firewall to degrade the performance of websites based outside China. Because all data from foreign websites pass through bottlenecks connecting China’s internet with the outside world, and because sensors at those bottlenecks further degrade transmissions across the firewall, non-Chinese websites are experienced from inside China as performing v-e-r-y s-l-o-w-l-y.  This performance deficit is so substantial--and puts non-Chinese websites at such a huge disadvantage relative to their competitors inside China--that foreign websites must establish a presence inside the firewall. Indeed, Google, despite misgivings, established Google.cn within China in 2007 mainly for this reason, while Yahoo and Amazon crossed the firewall by investing in their Chinese domestic rivals. American internet companies doing business in China should, for starters, acknowledge the extent of their self-censorship, not hide it or rationalize it or pretend that it is something other than the intensely unpleasant compromise that it is. Spare us the tortured and hypocritical justifications.  It helps for companies to admit their complicity; to clarify that all is not as it should be or appears to be; to openly assert their disagreement with Chinese government policies (if they do, indeed, disagree); and to disclose specifics about how their content has been altered to avoid displeasing authorities. U.S. firms also should do everything they reasonably can to protect their Chinese customers from the surveillance--and worse--of Chinese government authorities. If customer data and identifying information can be stored outside the firewall, beyond the reach of Chinese regulators and courts, they should be, even though that may involve greater costs. While this step does not assure protection of anonymous users (since control of a company’s license to operate in China gives the government considerable de facto leverage, quite apart from territorial limits on subpoenas and other legal processes), it is still meaningful. If off-shoring of confidential user information is not feasible, companies must take steps to warn their customers about the risks of using their service. And finally, where warnings are not possible or go unheeded, companies should force customers to give their real names when using their websites--which will, in turn, force users to think carefully about what they say or do online. Ironically, the barring of anonymity is the surest means of getting users to appreciate the risks of saying what the government doesn’t want to hear. Doing business on China’s internet is a messy, though potentially very lucrative, activity. Some companies may be so put off by the messiness that they stay away. For most, however, that is not a viable option. They must learn to be both honest with themselves and honest with their customers. ---- Peter Scheer, a lawyer and journalist, is CFAC’s executive director. CFAC is involved in a legal initiative to use the World Trade Organization to force China to suspend its censorship of the internet on grounds it violates international treaties on free trade.  This commentary was also published in the International Herald Tribune and the Huffington Post. 2008-04-21T16:50:00-08:00 http://www.cfac.org/content/index.php/site/commentary24/ http://www.cfac.org/content/index.php/site/commentary24/#When:00:19:01Z Locy and Risen cases renew debate over protecting journalists’ confidential sources By Peter Scheer Just when you thought it was safe again for journalists to promise anonymity to confidential sources, federal judicial power is being applied with renewed enthusiasm to force reporters to out their sources. A federal grand jury in Alexandria, VA has subpoenaed New York Times reporter James Risen to testify about his confidential sources for a chapter in his book, “State of War,” dealing with the CIA’s efforts to infiltrate Iran’s nuclear program during the Cinton and Bush administrations.  Whether the grand jury is investigating Risen’s source or Risen himself (or both) is not known. And former USA Today reporter Tony Locy has been ordered to pay crippling fines—starting at $500/day and escalating to $5,000/day—to force her to comply with an order to disclose confidential sources for articles she wrote in 2001 about Steven Hatfill, a bioterrorism expert whom federal investigators suspected was behind the anthrax mailings that killed five people. Hatfill, who has never been charged for those crimes, sued the federal government claiming that the Justice Department and FBI, by leaking to the press information about their suspicions of him, violated his rights under the federal Privacy Act.  The case is before federal judge Reggie Walton, who also presided over the prosecution of Lewis (“Scooter”) Libby. Judge Walton is nothing if not relentless in his pursuit of reporters’ testimony. His preferred strategy is to lean on reporters to lean on their sources to sign “waivers” of confidentiality. Despite serious doubts about the voluntariness of waivers—sources have little choice but to sign, since refusal could lead to demotion or dismissal—Judge Walton used this tactic in the Libby case to force some of the most prominent journalists in Washington to testify about conversations that thay had promised never to reveal. In the Hatfill case the judge has already succeeded in compelling Newsweek’s Michael Isikoff and Daniel Klaidman, ABC’s Brian Ross, and The Washington Post’s Allan Lengel to disclose their sources for reporting about Hatfill.  Although Locy, like the other reporters, has ID’d some of her confidential sources, she says she can’t remember whether she received information from additional sources. Judge Walton, it would appear, doesn’t believe Locy—hence the punitive fines. The judge has even forbidden USA Today or Locy’s family and friends from helping to pay the fines, the better to refresh Locy’s recollection about her sources. (The unorthodox contempt sanctions have been stayed pending Locy’s appeal to the federal court of appeals in DC.) These cases have renewed debate over the need for a federal “shield law” that would extend to federal judicial proceedings the protection for reporters’ confidential sources that is already given, to one extent or another, by California and most states.  Hatfill’s lawyer, Mark Grannis, writing in the Wall Street Journal, argues against a shield law on grounds that it would deprive the judicial system of truthful evidence, leave victims of government misbehavior without a remedy for their injuries, and indiscriminately protect both good confidential sources and bad. The defect in Grannis’ critique is that it misconceives the purpose of a shield law. The purpose is not to do justice to Grannis’ client or other litigants. It is to serve the public’s interest in learning about the actions of government and other powerful institutions by preserving journalists’ access to sources who would not reveal what they know unless given credible assurances of confidentiality.  Without protection for these sources, the public would be denied most news stories about national security matters, organized crime, and misconduct in the upper echelons of government and corporations. For most Americans, both liberals and conservatives, that is just too high a price to pay. Will a shield law cause unfairness to some litigants, like Hatfill? Regrettably, yes, in the same way that similar testimonial privileges for attorneys, doctors, priests and psychotherapists cause unfairness.  These well-established privileges also exclude relevant, truthful evidence from court proceedings. They do so in order to protect the overriding public interest in candid communications with law clients, medical patients, penitents and people needing help for emotional problems. Moreover, testimonial privileges--to have their intended effect--must be applied categorically, without regard to the facts of a particular case.  If Grannis invokes the attorney-client privilege to withhold confidential statements that Hatfill made to him, the attorney needn’t prove to a judge that Hatfill is an honorable person, or that his interest in confidentiality outweighs other litigants’ interest in access to his statements.  Categorical application of the attorney-client privilege is essential to give future clients assurance that they can speak confidentially to their lawyer. By the same token, protection for a reporter’s confidential source must be applied categorically.  The point is to give future whistleblowers assurance that a reporter’s promise of confidentiality will, in fact, be honored by the judicial system. For that reason it is irrelevant whether Locy’s confidential source is a saint or power-hungry bureaucrat intent on ruining Hatfill, or whether Locy herself is a model journalist or too trusting of her government sources. Every subpoena to a reporter further undercuts the people’s right to know what government is doing in their name. It’s time for Congress to end this erosion in access by enacting a credible shield law. Peter Scheer, a lawyer and journalist, is executive director of CFAC. 2008-03-25T00:19:01-08:00 http://www.cfac.org/content/index.php/site/commentary23/ http://www.cfac.org/content/index.php/site/commentary23/#When:19:41:00Z Using free trade to force China to permit more free speech By Nick Rahaim With the Beijing Summer Olympics approaching, the world has turned its focus toward China.  From alt/pop musician Bjork lending her support to the Free Tibet movement while recently performing in Shanghai, to Steven Spielberg stepping down as artistic adviser of the Beijing Games citing objections to China’s ties to the Sudanese government, many see this as an opportune moment to put pressure on the People’s Republic.  Here at the California First Amendment Coalition, we have had our eyes on China’s “Great Firewall” of internet censorship.  China’s censorship of the internet is well known, yet most arguments against the firewall and steps to counter it take an overtly political approach.  CFAC’s approach is economic, using international trade laws to promote the political goals of free speech and freedom of information. The Great Firewall and other restrictions to web traffic under the China’s “Golden Shield” program (yes, that’s what the Chinese government really calls it) create significant barriers to trade---barriers which, in our view, are in violation of the obligations China agreed to when it became a full member of the World Trade Organization in 2001.  Represented by D.C. trade law firm King & Spalding, CFAC is pressing the US Trade Representative to challenge China’s policies before the WTO. A favorable ruling by the WTO would provide American tech companies greater access to the Chinese market, but it would also achieve another, more novel, goal.  Creating greater market access in China would lessen the need for American companies to accede to self-censorship, and in turn allow for greater freedom of information.  A pro-trade decision by WTO would open the door for Web 2.0 companies and projects like Wikipedia, Mediawiki, Technorati—all of which are currently blocked in China.  China has been hostile to user-generated content where the identity of the user is unknown.  The promise of Web 2.0 technologies in China is that, by tapping the “collective intelligence” of millions of internet users, they will create a decentralized, democratic culture on the web that stands in stark contrast to the highly centralized and authoritarian Chinese regime. Favorable WTO action would also open the Chinese people to Chinese language media from outside the firewall. In our research we have found that nearly half of all Chinese-language websites based outside the firewall—many originating in Chinese-American communities in the U.S.—are blocked by the firewall.  Unlike other websites that allow for user-generated content, or contain politically taboo content, the Chinese-language sites are blocked simply because of their potential to speak, unfiltered, to a mass audience of Chinese citizens. With over 160 million-plus internet users, China will soon overtake the U.S. as the world’s biggest internet market—indeed, some observers say this already has happened. But for most people in China the web is far from “worldwide” because of the firewall’s degrading of the performance of websites outside the firewall, when viewed from inside. The firewall causes delays and other problems not experienced when Chinese users access China’s domestic websites. This technical barrier, as much as out-and-out censorship, keeps Chinese internet users inside the firewall. Why put up with slow connections and unreliable access to youtube.com when China’s own state-financed video site, tudou.cn, is faster and spares users the risk of viewing content that could put them under government suspicion? This performance deficit is the main reason that many American companies have started working within the firewall, and in doing so have accepted a high degree self-censorship to promote what Chinese president Hu Jintao calls a “healthy online culture.” Companies that offer blog and email hosting are required to provide user information to the Chinese authorities upon request.  This practice was roundly condemned when it was reported that both Microsoft and Yahoo! had handed over user information that led to the jailing of dissident bloggers and journalists. Although the firewall has been less than effective in insulating the Chinese people from foreign ideas (one observer, Jacqui Cheng, has said the firewall is more like a chain-link fence), it has been quite effective in insulating China’s indigenous internet industry from competition with US and other non-Chinese rivals. The market share in China of companies based outside of China is remarkably small. Google.cn accounts for only about 26 percent of web searches in China, with Baidu, the dominant search engine, accounting for about 60 percent.  If the WTO finds that China’s Golden Shield project is a barrier to trade, China can be forced to take steps to change policies that have hurt its people while benefiting the owners of its domestic internet firms. Such changes are inevitable at some point. The Olympic Games present a chance to greatly accelerate the pace of change. Nick Rahaim, a journalist, is a CFAC analyst. 2008-03-18T19:41:00-08:00 http://www.cfac.org/content/index.php/site/news5/ http://www.cfac.org/content/index.php/site/news5/#When:19:32:00Z Lights back on at wikileaks Wikileaks.org, which had gone dark as a result of a court order, is now back online. Following a 3-hour hearing Friday in San Francisco, federal Judge Jeffrey White ruled in favor of the whistleblower website on jurisdictional and 1st Amendment grounds. The judge previously had issued an order locking the wikileaks domain name--effectively shutting down the entire website--in response to a suit by Julius Baer Bank, a Swiss and Cayman Islands bank, over leaked banking records that had been posted to wikileaks. The judge both rescinded the locking order and denied a motion to extend a TRO focused more narrowly on the bank documents--ruling that such injunctions, when applied to a website like wikileaks no less than to a newspaper, are impermissible “prior restraints” on protected speech. The judge also found that, due to defects in “subject matter” jurisdiction, the bank was unlikely to succeed in establishing that the case could be brought in federal court. CFAC was instrumental in drawing attention to the wikileaks case and in organizing a legal assault on the court’s orders by public interest organizations and media companies.  CFAC itself intervened in the case together with Public Citizen (in DC). You can see the court’s Feb. 29 opinion here. Here are links to news stories on the most recent developments in the case. -PS 2008-03-01T19:32:00-08:00 http://www.cfac.org/content/index.php/site/public_citizen_and_cfac_join_wikileaks_case_to_overturn_orders_shuttering_s/ http://www.cfac.org/content/index.php/site/public_citizen_and_cfac_join_wikileaks_case_to_overturn_orders_shuttering_s/#When:22:38:01Z Public Citizen and CFAC seek to overturn court orders shuttering wikileaks.org San Francisco--Public Citizen and the California First Amendment Coalition, in pleadings filed in federal court today, seek to overturn injunctions that have shut down wikileaks.org, a whistleblower website CFAC and Public Citizen argue that the court did not have jurisdiction in the case, and therefore had no power to issue a temporary restraining order against wikileaks and a permanent injunction against wikileaks’ internet domain name registrar. The organizations also argue that, even if the court had jurisdiction, both court orders are invalid under the First Amendment. Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. CFAC is a free speech and open-government advocacy group with offices in San Rafael, CA. Here’s the Public Citizen/CFAC brief. CFAC and Public Citizen are seeking to intervene as parties in the lawsuit filed by Bank Julius Bear, a Swiss bank, in federal district court in San Francisco. The case has drawn attention because of the court’s unorthodox order, directing the disabling of the wikileaks.org domain, thereby effectively shuttering the site. Other briefs filed today include a submission by the ACLU and the Electronic Frontier Foundation, and a “friend of the court” brief signed by (among others), the Los Angeles Times, Hearst Corporation (publisher of the San Francisco Chronicle), Gannett Co., Inc., the Associated Press, E.W. Scripps Co., the Reporters Committee for Freedom of the Press and Citizen Media Law Project. Many of the documents posted on Wikileaks are aimed at exposing unethical behavior in governments and corporations around the world. According to the site, it “provides a forum for the entire global community to relentlessly examine any document for its credibility, plausibility, veracity and validity.” “Communities can interpret leaked documents and explain their relevance to the public,” the site continues. “If a document comes from the Chinese government, the entire Chinese dissident community and diaspora can freely scrutinize and discuss it; if a document arrives from Iran, the entire Farsi community can analyze it and put it in context.” The Swiss bank claims that one of the bank’s former employees, a Swiss national, posted documents on Wikileaks that embarrass the company and harm the privacy interests of its clients. The suit was filed against both wikileaks--which thus far has not appeared to defend itself in the case--and against Dynadot, the site’s domain registrar. Not only do the court’s order violate the Web site’s right to free speech but they also show the dangers of when a court moves too quickly to grant a restraining order in a First Amendment case, said Paul Alan Levy, a Public Citizen attorney. “The court’s lack of jurisdiction would have been obvious if the judge had been given time to think about the case, instead of being rushed into judgment,” Levy said. “In shutting down this Web site through an unlawful prior restraint, the court has muzzled a very important voice in the fight against corporate and government misdeeds,” said Peter Scheer, executive director of CFAC. Scheer said wikileaks, which is less than a year old, is a valuable resource for journalists and has already posted documents that have been the basis for important national news stories. Attorneys for Public Citizen and CFAC are Public Citizen’s Levy, in Washington, DC, and San Francisco media attorney Karl Olson, a partner in Levy Ram & Olson. CONTACT: For more information, call: Peter Scheer, CFAC, 415-460-5060 Joe Newman, Public Citizen, 202-588-7703 2008-02-26T22:38:01-08:00 http://www.cfac.org/content/index.php/site/federal_judges_order_shutting_down_wikileaksorg_a_promising_transparency_si/ http://www.cfac.org/content/index.php/site/federal_judges_order_shutting_down_wikileaksorg_a_promising_transparency_si/#When:07:04:00Z Federal judge’s order shutting down wikileaks.org, a whistleblower website, is 1st Amendment travesty By Peter Scheer Wikileaks.org, a whistleblower website that enables the anonymous (and, in theory, untraceable) leaking of confidential government and corporate documents, has gone dark. Although Wikileaks’ silencing was sought by antidemocratic governments worldwide--including China, whose censors work mightily to block all access to the site--wikileak’s plug was pulled, ironically, by a federal judge in San Francisco. Acceding to the wishes of a Swiss bank complaining that Wikileaks had published confidential bank records, federal district Judge Jeffrey S. White last week signed an order to remove from the internet not merely the offending bank records (which purport to show evidence of money-laundering and tax-evasion) but the entire Wikileaks.org website--including documents that were the basis for major news stories in recent months on, among other things: The US military’s rules of engagement in Iraq (the New York Times); the treatment of terrorist suspects held at Guantanamo (Wired.com); official corruption in Kenya and Somalia (BBC News); and the collapse of the Northern Rock Bank in England (The Guardian), among others. Judge White’s order, which directs wikileaks’ domain registrar, Dynadot, to deactivate (and lock) the wikileaks.org domain, is the same, legally-speaking, as enjoining all future editions of the Washington Post because of a corporation’s complaint about one article that appeared in the newspaper last month. In the hierarchy of offenses to the First Amendment, the shutting down of a publication--whether a daily newspaper or a widely read website or blog--is among the most serious. What the government of China could not do, despite building its “Great Firewall” of censorship, Judge White accomplished with the stroke of a pen. Or perhaps not. . . Anticipating a legal onslaught, wikileaks apparently arranged for its content to be viewed on alternate addresses around the world (such as wikileaks.cx, which was still functioning as of this writing). It remains to be seen how long wikileaks, by use of these and other techniques, can stay a step ahead of the censors. Why does the survival of wikileaks matter?  Because it has the potential, as a model for exposing what governments wish to keep secret, to be a potent force for more transparent--and therefore more accountable--government. In a closed society like China, where the press is heavily censored and regulation of service providers precludes anonymous posting online, wikileaks enables a dissident to publish leaked documents about government corruption or human rights violations--and do so with reasonable confidence of escaping detection. In more open societies, wikileaks offers a means for a whistleblower to expose evidence of wrongdoing (or wrongheadedness) that news organizations, for whatever reason, have declined to publish. For the most sensitive documents, wikileaks is also a means of transmitting evidence to journalists that, due to the absence of fingerprints, protects both the source and the journalist from a grand jury subpoena or prosecution for leaking. If Daniel Ellsberg were trying to leak the Pentagon Papers today, he might use wikileaks. Of course, the power to expose official secrets is the power both to hold government accountable and to endanger vital national interests. Merely because one can disclose legitimate state secrets is not a reason for doing so. Thus far, however, wikileaks’ staff (who are themselves anonymous) appear to be exercising their editorial discretion responsibly. Consider Wikileaks posting of the US rules of engagement for fighting in Iraq. Although classified, the document reveals nothing of tactical value about US plans or capabilities (which, in any event, were out of date by the time of the document’s posting in late 2006). What it does reveal are rules and policies reflecting the US military’s near-obsession with avoiding civilian casualties and the high priority assigned to protecting Iraqi citizens and civilian infrastructure. Ironically, American interests would have been well-served if the US military, rather than treating the rules of engagement as secret, had turned them over to Al-Jazeera. Purely from a public relations standpoint, they describe American operations as the military would want the world to see them. The same is essentially true of Wikileaks’ posting of the military’s operating manual for the Guantanamo prison (which, though unclassified, was marked for “official use only” and had been withheld in response to FOIA requests by the ACLU and others). On paper (if not in practise), the rules and policies for Guantanamo are most impressive for their prohibition against abuse of detainees and admonitions to “treat detainees humanely.” Back to wikileaks’ California court case for a beat: To give Judge White the benefit of the doubt, it’s possible he didn’t realize he was ordering the pull down of all of wikileaks.org. The order presented to him, drafted by the bank’s lawyers, implemented a settlement of the bank’s claims against Dyanadot, the registrar for the wikileaks.org domain name. Because wikileaks was unrepresented in the proceeding, there was no one to point out that, while the settlement nominally dealt only with Dynadot, the effect of the order was to take all of wikileaks.org off the internet. If his order was a mistake, he will have ample opportunity to correct it. But if Judge White does nothing, he will deserve all the criticism he gets. Peter Scheer is executive director of CFAC 2008-02-19T07:04:00-08:00 http://www.cfac.org/content/index.php/site/commentary21/ http://www.cfac.org/content/index.php/site/commentary21/#When:08:04:00Z Rating the leading Presidential candidates on First Amendment issues. And the winner is .  .  . By Peter Scheer Voters generally don’t pick a presidential candidate on the basis of a single issue--nor should they. But with the presidential campaign accelerating toward potentially decisive primaries in the next few weeks, it’s worth considering how the leading contenders compare in their commitment to First Amendment rights. All political leaders are champions of free speech and open-government--in a vacuum. The real question is how they would balance those principles against competing interests in decisions involving issues of national security, economic policy and the like--all made in a politically-charged setting that is awash in campaign contributions. One can only speculate, of course . . . Clinton Hillary Clinton, as the most wonkish of the leading candidates (that’s not a criticism), impresses as someone who has thought hard about the role of First Amendment rights. As a lawyer with an elite legal pedigree whose first professional gig was investigating Richard Nixon’s predations against civil liberties during Watergate, she has an appreciation for both the danger of excessive governmental secrecy, and the importance of the press as an institutional counterweight. On the other hand, as a subject of Congressional investigation during hearings into her and Bill Clinton’s business dealings in the Whitewater matter, Hillary Clinton was not exactly a model of openness. (Recall the law firm files that were lost and then found in the Presidential living quarters of the White House.) And she was justly criticized, in her role as top healthcare advisor in her husband’s first term, for the overly secretive process she used for drafting legislation to create a system of national health insurance. Obama Barack Obama has the advantage, on this as on other issues, of being a relatively clean slate. In his favor is his impressive intellect: One does not get to be Editor of the Harvard Law Review or professor at the University of Chicago Law School without an understanding of the First Amendment, and constitutional law generally, to rival that of most Supreme Court justices. Obama’s years as a community organizer in Chicago were instructive about the uses of free speech and political activism to overcome official indifference. And Obama doesn’t seem to be the sort of political figure who is obsessive about secrecy. His own life, as described in unusual candor in Obama’s autobiographical writings, is an open book--literally. On the other side of the ledger, Obama has gotten very far without having to say very much about what he would do as President. His channeling of John F. Kennedy in stirring speeches that appeal to voters’ hunger for transformative leadership are long on emotion and short on specifics. While politically astute, that strategy undermines promises that an Obama administration would emphasize transparency in decision-making. Obama as president would preside over numerous policy debates in which national security advocates will argue for more potent means of monitoring suspected enemies and fighting terrorism. The requested enhancements in government power will exact a price in civil liberties--mostly incremental, but occasionally huge, as after the 9/11 terrorist strikes. Would Obama resist these enhancements (at the risk of being seen as weak on national security matters), or, like President Kennedy, would his relative lack of foreign policy experience cause him to defer to the judgments of advisors who inevitably undervalue First Amendment rights? McCain John McCain is Obama’s opposite in this regard. A war hero, McCain is not likely to be intimidated by neocons urging a more robust counterterrorism policy or a more bellicose foreign policy. On the other hand, McCain, an activist conservative in national security matters, agrees with the neocons (except on the issue of torture). If McCain’s neocon outlook is a problem for you, that’s a problem. McCain is the darling of the media, which is a plus. The media love McCain not only because of his accessibility to reporters but because of his willingness to tell audiences what they don’t want to hear: To voters in Michigan, that auto manufacturing jobs aren’t coming back; to farmers in Iowa, that government subsidies for ethanol are bad public policy and a waste of tax dollars. McCain seems almost to revel in speaking inconvenient truth. McCain’s loathing for political doublespeak and pandering, his preference for candor over popularity, would suggest a predisposition as President to conduct government affairs with a high degree of openness and transparency. On the other hand, McCain’s serial authorship of defective campaign finance laws, repeatedly slapped down by the Supreme Court as violative of the First Amendment, may reflect an indifference to constitutional safeguards for political speech. (Unless, like McCain, you reject the Supreme Court’s equation of money and speech.) Romney Republican candidate Mitt Romney is a consummate investor and businessman. Business people have an abiding faith in transparency (as buyers, that is; as sellers they want to disclose only information that boosts the sales price).  That faith might translate to political affairs, should Romney be elected President. Although Romney was Governor of Massachusetts for four years, he has spent more of his professional life in the private sector than any of the other leading candidates. People who spend many years in government tend to view policy issues from a government perspective. They are, more often than not, hostile to the press, government’s natural adversary. They favor a powerful central government. If they have served mainly in the executive branch, they tend to think that the executive is the most competent and professional branch, and the branch of government most focused on the public interest (in contrast to Congress, which they view as a captive of parochial, special interests). While Romney is hardly a libertarian, he may be favored by First Amendment advocates who believe that freedom of speech is inversely related to the power of government. On the other hand, Romney has changed his positions on key issues so many times that voters may wonder whether the candidate they see in the primaries is the President they’d get if he were elected. Presidents do matter, in the areas of First Amendment and open-government rights as elsewhere. Think about that as you walk into the voting booth. And when you decide who to vote for, please let us know. -------- Peter Scheer, a lawyer and journalist, is executive director of CFAC.  http://www.cfac.org This column was reprinted as an Op-Ed in the January 28, 2008 issue of the San Francisco Chronicle. 2008-01-22T08:04:00-08:00 http://www.cfac.org/content/index.php/site/report/ http://www.cfac.org/content/index.php/site/report/#When:08:28:00Z Acting globally and locally: From internet censorship in China to a TRO against Atherton, CA By Peter Scheer This is to update CFAC supporters on our latest efforts to stir up trouble on behalf of First Amendment freedoms. I’m pleased to report that CFAC has managed to create a whole lot of trouble, both globally and locally, in the last 2 months. First globally: CFAC has initiated a proceeding that will attempt to use international trade laws to force the government of China to end its censorship of the internet. In a submission and presentation to the Office of the US Trade Representative, CFAC has petitioned for the filing of a complaint with the World Trade Organization, of which China became a member in 2001. Our (concededly novel) theory: that China’s censorship of the internet, the most pervasive and systematic system of censorship in the world, violates China’s obligations under treaties it signed (the GATT, covering free trade in goods, and the GATS, covering services) in order to join the WTO. We contend China must end its censorship or risk limitations on its access to US markets. Think of this as the biggest access-to-information and free speech case in history. If the Trade Representative agrees with CFAC’s petition and files a complaint with the WTO, and if the WTO rules against China--big “ifs,” to be sure--some 1.2 billion Chinese citizens will, for the first time, have unfiltered access to information about the outside world, via the internet. CFAC is represented by the national law firm of King & Spalding, whose Washington, DC office specializes in trade matters, including several successful cases against China. CFAC is supported in this initiative by a consortium of organizations, including the UC Berkeley Graduate School of Journalism, the Center for Internet and Society at Stanford Law School, the National Freedom of Information Coalition, and the China Internet Project at UC Berkeley, among others. Stay tuned. You’ll be hearing a lot more about this matter. California cases Don’t think for a minute that the China initiative has distracted us from battles closer to home. In the last month alone, CFAC has filed amicus briefs in crucial access cases in Orange County and San Mateo County; intervened successfully in a Hadley v. McCoy feud in San Diego; and even published (together with our partner, the California Newspaper Publishers’ Association) a comprehensive new legal guide, “The Right to Know: A Guide to Public Access and Media Law.” --Orange County In Calaware v. Orange Unified School District, CFAC came to the assistance of open-government organization Californians Aware, which had sued Orange Unified to contest the school board’s censure of a dissident board member for comments he made at a public meeting (as well as the board’s editing of the audio record of the meeting to delete the comments). The Superior Court not only rejected Calaware’s claims, but granted the school board’s motion to strike the case under California’s anti-SLAPP law. The result: Calaware, a small nonprofit, was ordered to pay the school board’s legal fees. CFAC’s amicus brief, written by CFAC Board President James Chadwick and Board members Guylyn Cummins and Steve Barnett, urges the appeals court to reverse the judgment against Calaware because the anti-SLAPP law, we argue, can’t be used as a defense against suits alleging violations of California’s open-government laws: the Brown Act and the Public Records Act. We also argue that allowing the anti-SLAPP law to be used to cut short a First Amendment claim violates federal safeguards, applicable in state court as well as federal court, for consideration of alleged violations of free speech rights. --San Diego San Diego City Attorney Michael Aguirre doesn’t like the management at KPBS public television, and the folks at KPBS don’t much like Aguirre. That’s the nicest way to describe the long-running Hadley v. McCoy-style feud over Aquirre’s criticisms of the station’s local programming. Aguirre says KPBS, which receives state funds as an extension of the Cal State University system, doesn’t do enough local programming. Aguirre’s critics say his real beef is that he wants more programming that is favorable to him. Last month Aguirre escalated the feud by having his office send KPBS public records requests demanding copies of internal documents discussing the station’s programming decisions. That step, in CFAC’s view, crossed the line between political squabbling (OK) and government interference with the editorial process (not OK). Following the appearance of a news article mentioning our concerns, Aguirre called CFAC; he and I spoke at length about his public records requests. By the end of the conversation he was persuaded that the First Amendment issues were real, and he promised to rescind the PRA requests to the station. True to his word, Aguirre held a press conference that day and announced the withdrawal of the record requests, as described in this item from the San Diego Union Tribune. --San Mateo The town of Atherton’s former Finance Director was the subject of an investigation. Atherton received a CPRA request for a report on the investigation, which the town decided to release. That decision was communicated to the Finance Director, who promptly filed suit against Atherton to block disclosure of the report on grounds of privacy. CFAC believes strongly that government agencies should not be subject to suit when they do the right thing by deciding to release a requested document. We filed an amicus brief in this case to make an argument that would not only permit disclosure of the Atherton report, but, if generally accepted, would effectively prevent future suits to stop government agencies from voluntarily releasing public records. In a brief filed last week, CFAC argued that government agencies have rights of freedom of speech, and that the disclosure of a written document is an exercise of that right. Since release of a requested record is constitutionally-protected speech, any court-issued injunction against disclosure is an invalid “prior restraint” on expression. At a hearing on Friday, the Superior Court for San Mateo County gave Atherton a green light to disclose the investigative report. Although the judge did not issue an opinion, we think our brief, written by James Chadwick, had an impact. --CFAC Legal Guide Finally, CFAC has started selling its authoritative, new legal guide, The Right to Know: A Guide to Public Access and Media Law. The Right to Know combines the best features of CFAC’s “Legal Notebook” and CNPA’s “Reporter’s Handbook.” It is the best of both books . . . the best of all books . . . a must-have, must-read, one-stop law guide on access and First Amendment law for journalists, bloggers, lawyers, citizens groups, activists and public officials. The Right to Know is an incredible bargain: -$25 for CFAC and CNPA members (very cheap) -$30 for nonmembers (cheap) -Order your copy online or by calling 916-288-6009 The Right to Know is written by CFAC Board President James Chadwick (partner at Sheppard Mullin Richter & Hampton) and by CFAC General Counsel Roger R. Myers (partner at Holme, Roberts & Owen). Purchasers of The Right to Know also receive: --access online to all court decisions cited in book (full text) --access to new legal developments and updates online Order your copy today.  You’ll not only get a terrific legal resource, but you’ll help pay for all the important cases we do. ===== Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition. 2008-01-20T08:28:00-08:00 http://www.cfac.org/content/index.php/site/commentary22/ http://www.cfac.org/content/index.php/site/commentary22/#When:00:30:00Z Anonymous speech, although constitutionally protected, is mostly digital graffiti. Freedom of expression means taking responsibility for what you write. By Peter Scheer A Chinese blogger, defying a government censorship decree, publishes information about the crash of a military transport plane. Another blogger, an Egyptian, posts photos of the scarred body of a teenager who was tortured by Egyptian police. Both bloggers are anonymous. No one can doubt these speakers’ need to hide their identities. Their internet postings are in the venerable tradition of the Federalist Papers and other revolutionary pamphlets and manifestos whose authors, also anonymous, had reason to fear prosecution for their political views. It is precisely for this kind of expression that the First Amendment protects speech of both named and unnamed authors. The right to speak anonymously, at least in the United States, is well established. Regrettably, however, the right is also widely abused. The internet is crawling with anonymous communications. Like digital kudzu, they spread from spam email to message board postings to entire blogs and websites. For all but a few, there is no discernible need or reason for anonymity. Writers enjoy the freedom that comes with anonymity, forgetting their obligations to their audience. First Amendment protection for anonymous speech has become, on the internet, license to avoid having to take responsibility for what one writes. The promiscuous use of anonymity breeds distrust. Readers react to anonymous online postings with the same skepticism that they have for newspaper articles that rely unnecessarily on unnamed sources. They wonder if the anonymous blogger is a paid shill, or has some other conflict of interest, just as they wonder if a newspaper’s anonymous source is objective or has an ax to grind. And if the use of anonymity is not explained or apparent from the context, readers will question a blogger’s good faith, just as they may wonder whether a newspaper’s anonymous source really exists. And anonymity corrodes the conventions of civil discourse, giving vent to impulses that, for society’s sake, are perhaps best held in check. Viciously personal attacks, racist screeds and paranoid rants are commonplace on the anonymous internet. While such atavistic displays may provide an interesting laboratory for Freudian psychologists, they contribute nothing to debate on matters of public interest. If you’ve ever been on the receiving end of this invective, you know that it is impossible to reason with people who are screaming at you from behind a one-way mirror. The volume of their screaming only goes up. There are lessons here for fledgling bloggers and other practitioners of Citizen Media, particularly blogs that offer news and opinion focused on particular communities (defined geographically). These online publications hold tremendous promise as competitors for local newspapers and as vehicles for self-expression by community residents who previously had no means, save the occasional letter-to-the-editor, to make their voices heard. These blogs, however, will not be taken seriously if their authors persist in hiding their identity. Bloggers must take responsibility for what they write. For bloggers who publish in the relative security of the U.S. (compared to, say, China or Iran or Singapore), fear of reprisals, the most commonly cited justification for anonymity, is greatly exaggerated. When a blogger in California mentions the risk of reprisals, he is really talking about the discomfort of having to stand in a supermarket checkout line next to a city council member whom he has criticized in online writings. Awkward, yes, but not a risk grave enough to justify publishing anonymously. Bloggers forget that free speech is never truly free. The awkwardness and discomfort that derives from speaking one’s mind, and thereby giving offense to one’s neighbors, is the modest price that one must pay for the exercise of First Amendment rights. It is a price that good mainstream journalists have paid for decades. Similarly, there are lessons here for newspapers and other media outlets that, in their rush to convert sleepy websites into “Web 2.0” engines of economic growth, turn over large sections of their online real estate to readers who post anonymously. This shortcut to increased website traffic is a mistake. Newspapers should not allow anonymous postings to their website, any more than they allow anonymous contributions to their Op-Ed pages. Persons who post comments on a newspaper’s website should be required to give their name, unless they can show a good reason not to. Most anonymous speech is just digital graffiti. Although it is protected from government regulation under the First Amendment, private publishers---whether bloggers or news media websites---have a duty to take responsibility for materials that they publish. In all but the most extreme cases, taking responsibility means identifying the author. ------ Peter Scheer, a lawyer and journalist, is CFAC’s executive director. 2007-11-29T00:30:00-08:00