We’ve followed Ars Technica’s take on the FISA for a long while now, and consistently shake our head when we read their latest thoughts. That’s not to say that there aren’t bits of truth in the respective commentary, but Ars Technica’s writers have become grossly negligent when it comes to FISA reporting. That’s not to say that their reporting is any worse than what we see from other news outlets, merely that we began following Ars Technica many years ago because of their consistently well-informed commentary on technical articles. That’s one of the reasons, after all, that we applied to moderate their gaming forum, and why we wrote for Ars Technica in the past.
Something happened, however, when Ars Technica expanded their staff and began reporting on non-technical matters; Ars Technica is still a great authority in many technical areas, their growth has negatively affected their overall expertise, and this is clearly seen in their FISA-related posts. With Ars Technica’s recent purchase and explosion into the media landscape, it is no longer the little hobbyist website it once was, and so it’s painful to see them stray so far from what respectable journalism should be.
Let’s take a look at Timothy B. Lee’s recent post on the subject, entitled “The new FISA compromise: it’s worse than you think“. This isn’t the first time a headline sets the tone for the rest of the article, and no doubt, in this case, it’s a biased one. We admit that there’s a certain stereotype that holds true with techies, and we’re not talking about the massive downloading of porn or the wearing of pocket protectors. Rather, we refer to the culture’s open distaste for anything government-related, which is in no small part derived from the hacker mythos that many techies subscribe to (e.g. phreaking, breaking into networks, reverse-engineering, circumventing DRM, etc). In other words, many of the esteemed activities of techies involves butting heads with the government, because many of these activities are, on paper, illegal.
Given the inherent conflict between an entity that makes and enforces laws and those who, at minimum, simply wish to explore what is technically possible even if it means countering the law, it doesn’t take much for a journalist to win techies over to an anti-government position. That’s especially true when pop culture routinely describes the government as corrupt, insincere, and the penultimate bad guy seeking to oppress the innocent. (Take The Matrix for example, which paints the Agents as the enforcer of oppression and slavery, which is an interesting change of pace from the Capone days, when government agents were revered as the good guys.)
In other words, most techies are inherently anti-government from the get-go, because they see the government as standing in the way of their freedoms. That’s all fine and good, but this position doesn’t need perpetuating, especially from someone who considers themselves a journalist. Yes, sensational journalism is everywhere, but that’s a sad force that indy journalism is capable of counteracting. Ars Technica, which sprang from the ether as such an indy medium, should be just as factual now as it once was, and if they don’t have the expertise on a particular topic, then they should leave the topic be and focus on what they do know about. Ars Technica is, after all, a web site about technical things, and while FISA techniques may involve the technical in regards to topics like the infamous wire-tapping by government entities, the discussion offered by writers like Lee isn’t on the technical techniques involved (which would arguably be more interesting to a techie audience) but on the law and legality of the authorizations. That’s not to say that public knowledge of the FISA authorization process is necessarily easy to obtain, because the FISA is inherently a classified set of provisions, but nonetheless, understanding its intricacies is what investigative journalism should be about. Instead, what we see from authors like Lee is a “doom and gloom” scenario that can only be described as fear-mongering.
For most all FISA-related articles one can find online, the authors barely do the background of the topic justice. After all, how many readers understand the actual history of the FISA before 9/11? Why does it exist? Why is final approval done through the Foreign Intelligence Surveillance Court instead of a court of normal federal judges? What federal entities are authorized to propose new FISA warrants? What are the steps necessary to do so, and how do they differ (if at all) from conventional search/surveillance warrants?
Rather than focus on the meat of the what/how behind the FISA, the media is content with making sweeping statements, such as those Lee makes without supporting them, which only makes us wonder if his primary source for the article was other media outlets, or if any investigative reporting occurred at all.
…the new legislation dramatically expands the government’s ability to wiretap without meaningful judicial oversight…
What does Lee define as a “dramatic expansion” (i.e. what specifically can the government do now that they couldn’t before)?
…the feds can drag their feet on getting authorization almost indefinitely.
Indefinitely?” Almost indefinitely? Here we thought a delay in authorization was only in emergency circumstances as Lee later proposes, just before pointing out that what he really means is “120 days”. Fortunately, we now have a numerical definition of “indefinitely”.
It also gives the feds unprecedented new latitude in selecting eavesdropping targets, latitude that could be used to collect information on non-terrorist-related activities like P2P copyright infringement and online gambling.
What does Lee consider “unprecedented new latitude”? Has there been an instance of the government pursuing a copyright infringement or online gambling case based on a FISA warrant? What source does Lee have to propose that this has happened, or even will happen?
[The] FISA sets a lower bar for approving surveillance than the process for obtaining ordinary criminal warrants.
That may be what “Civil libertarians” claim, but what is the support for that claim? Again, how do the processes between criminal warrants differ from FISA warrants? Is there a single reporter out there who dares find out and actually report it to the people?
…the government may discard information obtained about Americans as part of the required “minimization” procedures, but the government would retain significant latitude to decide which information it retains.
Here we go with the latitude bit again. If Lee isn’t clear on what the government means in regards to their “minimization” methodology, then how can he be sure that it doesn’t prevent the government from retaining non-applicable information on American persons?
Finally, the notion that the government could execute a “dragnet surveillance” on all international communications in a major city more easily than it could the communications of a single person in said city is nothing more than outright fear-mongering. As is Lee’s inference that coordination between foreign intelligence gathering organizations and law enforcement organizations will result in the FBI using NSA resources to obtain evidence of internet gambling, copyright infringements et al. Perhaps Lee should read up on the FBI’s mission and priorities and recognize that despite being a law enforcement organization, it’s top two goals are intelligence-related, making coordination with its intelligence partners a sensical move. Why Lee, and his counterparts in the media, like to draw random conclusions about inter-agency coordination is a question to ask them directly, though it’s certainly odd that they choose to assume the worst.
We don’t mean to pick on Lee alone, as we understand that he may have real concern over the direction of FISA law, but his recent article is like so many others in the media that it comes across as little more than pandering to an audience already biased against government actions. Yet the media as a whole doesn’t really inform its readers about the intricacies of the law, but merely generalizes and infers to paint a bleak picture about the big, dark, government machine, as though it is an instantiation of the Illuminati realized. Let’s step out of our Orwellian fascinations for a moment and remember that the media is supposed to be interested in the truth, not propaganda.
So to Ars Technica (a hive of villainy occupied by many of our friends), and to the many other publications out there, please begin reporting responsibly on these types of issues, because it’s more important that people understand them, than it is for people to fear them. If that understanding ultimately leads to fear, it’s better that people’s concern was borne from fact, than the reporter’s own bias.
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Omg! Finally a topic that doesn’t revolve around techno-geek or gaming! I’m so excited I hardly know where to start!
I agree with you, mendax, that the media helps to keep the populace at odds with the government. Certainly, there are government practices that I don’t necessarily agree with (NSLs), but I think the general public grossly misunderstands FISA-related activities. As you said, most people don’t take the time to read up on FISA policies. They simply rely upon the media, forgetting that the media is not always out to report the truth, but to report an aspect of the truth and sensationalize the rest. Sometimes the truth is too boring to sell newspapers.
I am constantly disappointed by the media when I read newspaper articles concerning FISA where they refer to the “secret court”. Obviously, when you start calling a court “secret” people are going to become immediately suspicious. Rarely does the media ever explain why the FISA court is different from other courts. Instead, the media works to foster distrust in the American populace.
Another sensationalist statement that drives me nuts is, “The FISA court approves almost every request.” This implies, of course, that the FISA court loves to approve everything that comes across its desk, as if there are no checks and balances. Has the media ever considered that there just might be a lot that occurs with FISA requests before it ever even makes it to the court? Why not write about the whole process rather than just the end point?
Don’t get me wrong…I think it’s good to question our government. I think that Bush did overstep his bounds in his quest to identify terrorists and protect the nation. Not that I love spending my time defending Bush (I pretty much think he’s an idiot), but at least in this instance you can see where he was coming from. Is it better to do and ask forgiveness later, however? Probably not when it comes to government activity. We do have that little document called the Constitution and all. Even the best of intentions can end up trampling the very rights that the government has sworn to protect.
In the realm of FISA, however, I think the populace needs to stop relying upon a biased media and start doing its own research to make up its own mind.