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Is America Getting More Like China?

Rebecca MacKinnon

Since Obama became President — and yes, I voted for him — there has been a great deal of optimism and energy around the idea that the Internet can be used to improve or "reboot” our democracy. The Administration has hired some great people to work on making government more open and transparent.

This is all great. But how much good will all of this nifty e-government do for American democracy if citizens' rights to privacy and free expression are not also fiercely defended?

On that score, the Obama Administration has been dangerously disappointing. This month's news makes me feel like the U.S. is getting more like China in some ways.

A man who was using Twitter to help coordinate G20 protests in Pittsburgh was arrested and had his home searched because he posted information about police movements on Twitter. For more on that story see the New York Times, Democracy Now (with a video interview of Elliot Madison and his lawyer), the Huffington Post, the CDT's Policy Beta blog, and the Digitaldumonde blog.

The FTC has released new commercial endorsement guidelines for anybody who ever posts anything online, be it on a blog, Facebook, Twitter, Amazon reviews, or wherever (except professional journalists who are exempt thanks to the First Amendment which seems only to apply to some Americans these days). While the guidelines are well intentioned and aim to promote honesty in product promotion and protect consumers on the Internet, they are so broad and vaguely worded that they could only be enforced selectively and unfairly. As Salon's Jack Shafer describes them: "They are written so broadly that if you blog about a good and service in such a way that the FTC construes as an endorsement, the commission has a predicate to investigate." What's more: "As I read the guidelines, the FTC could investigate you if you did disclose but it was not satisfied with the disclosure." See more critques from Dan Gillmor, Jeff Jarvis, the LA Times, and Jeff Bercovici at Daily Finance. As free speech activists living in authoritarian countries like China — or even pseudo-authoritarian pseudo-democracies like Singapore — will readily tell you, over-broad and vague regulations of speech are dangerous because there's no way to enforce them uniformly or fairly. So authorities enforce them selectively based on often arbitrary and generally un-transparent criteria. Such regulations become a great umbrella excuse to stifle speech that powerful people don't like for whatever reason. Over-broad regulations also have a chilling effect on speech because people tend to over-compensate in order to avoid trouble.

Then there's the matter of the media shield bill currently before the Senate Judiciary Committee. The idea is to pass a law that would protect journalists who refuse to divulge their confidential sources in federal court. It was bad enough that the definition of "journalist" has now excluded citizen media, bloggers, and student journalists completely. Even worse, the White House has now proposed changes to the bill that would substantially weaken professional reporters' protections. As the New York Times editorial page points out, so much for Obama's promise of transparency:

At the heart of the disagreement is the balance between national security and the public's right to know. The best approach is to protect legitimate security claims while rejecting those that are made in the name of national security but are really aimed at avoiding embarrassment. That was the constant cry from the Bush administration as the public learned — through the unauthorized disclosure of confidential information — of prisoner abuse, secret C.I.A. prisons for terrorist suspects and warrantless wiretapping.

The Senate bill and a measure passed earlier in the House aim at a reasonable balance by relying on a federal judge to decide when security is not truly at risk and sources must be protected. The White House proposals would instruct judges to defer to the administration's view of when and if a news leak presents a "significant" security leak. The executive branch would arrogate power to decide the public's right to know by crimping the news media's ability to make a case for disclosure.

As Michael Masnick at TechDirt puts it:

If you want to create a chilling effect against any sort of whistleblowing on gov't corruption, that's what this proposal does. It basically lets the gov't say that the shield law only applies to whistleblowing that doesn't make the administration look bad. But, in any case where the administration isn't happy, it gets to wipe out the shield. Apparently, freedom of the press only applies to situations in which the administration is not embarrassed.

Dan Thomasson at Scripps Howard puts it this way: "Now it seems the president also has decided the people's right to know might not be all that beneficial to him or them."

Last but not least, there's the USA PATRIOT Act (full text here), which in 2001 expanded the government's powers to spy on American citizens in the course of anti-terror and criminal investigations. Three of its key provisions are up for reauthorization this year, and the Senate Judiciary Committee will be considering them today (Thursday U.S. time). The Economist's Democracy in America blog has an excellent summary of the current state of play, which I take the liberty to quote at great length:

While some Democratic senators had initially shown interest in using the occasion to review the broad edifice of post — 9/11 surveillance powers granted the executive branch, legislators now seem poised to move ahead with reauthorisation absent even the mildest additional civil-liberties safeguards.The Obama administration had requested reauthorisationof all three "sunsetting" Patriot-Act powers: roving wiretap authority; license to spy on so-called "lone wolf” terror suspects under the broad aegis of the Foreign Intelligence Surveillance act; and "section 215” orders, which allow investigators to compel the production of business records or any other "tangible thing". Yet the Justice Department had also signaled its openness to "modifications" designed to protect the privacy of Americans and check potential abuses.

Russ Feingold took them up on the offer with an ambitious proposal that would have substantially overhauled the new foreign-intelligence-surveillance architecture. More modest was a proposal by Patrick Leahy, the Judiciary Committee's chairman, that would have somewhat constrained the scope of both 215 orders and the controversial "national security letters", which internal probes found to be subject to endemic misuse.

Yet even the more moderate reforms proved a bridge too far for Dianne Feinstein, who swooped in at the last minute before last week's legislative mark-up session with her own substitute bill, stripping away even the feeble restraints Mr Leahy had supported. The reason was the purported fear of FBI officials that these constraints might interfere with a number of "ongoing investigations", intimated to have sprung from the arrest of suspected bomb plotter Najibullah Zazi. Over Mr Feingold's objections, Ms Feinstein's language was made the template for renewal legislation, and the committee is expected to report a final draft out to the full Senate on Thursday.

For updates on Thursday's developments, a liveblog of the proceedings, and information about how to take action, visit the Patriot Act Action Hub. For very detailed background read the last eight posts or so on Marcy Wheeler's Empty Wheel blog. She will also be live-blogging on Thursday. Also see Glenn Greenwald's The joint Post/Obama defense of the Patriot Act and FISA for a critique of some of the lap-doggish mainstream media coverage on the issue, and a rebuttal of Fox news coverage by Cato's Julian Sanchez.

I'm worried that most liberals and progressives have stopped paying attention and are just assuming everything will work out ok now that "our guy" is in office. I was tremendously excited about Obama's candidacy. I was jubilant when he got elected. I don't see myself turning Republican any time in this lifetime, but if the Obama Administration doesn't start showing a bit more concern for American civil liberties — putting aside for the moment the question of whether he cares about anybody else's — I'm going to start wishing for a viable third party with a meaningful civil liberties and human rights platform.

By Rebecca MacKinnon, Journalist and activist; Co-founder, Global Voices Online
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At least Obama has made sure he's on the right track Suresh Ramasubramanian  –  Oct 08, 2009 7:47 PM PDT

By ignoring and alienating his extreme left supporters just as much as he's alienated the hardline right.

Comparing the Obama administration to China is way too much of a stretch, even for that hackneyed old logical fallacy, the "slippery slope" model.

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