Yesterday, patriotic and heroic Sally Yates heroically and patriotically testified on Russian interference in the 2016 Presidential Election, which she did with patriotism and heroism.  She also rendered a great service for MSNBC, CNN, and the rest of the mainstream media by helping to get the Russiawank story back into the headlines.

In all seriousness, any honest observer who watched the hearing would have to agree that Yates did a good job on delivering her testimony.  I was annoyed and impressed with how well she defended her refusal to defend the Travel Ban, which ultimately brought about her termination from the DOJ, against strong attacks from Grassley, Kennedy, and Cruz.  Only an idiot would challenge her on that topic again, publicly.

As for the substance of her patriotic and heroic testimony, there isn’t anything there that we didn’t already know.  More importantly, it’s still obvious that the evidence of any collusion between Trump and his campaign and Russia in “hacking the election” is still non-existent.  I don’t have any commentary on that nor do I have anything new to offer since the last time I bothered discussing #Russiagate.

Instead, there was one particular exchange that really got my attention:

GRASSELY: Do you two believe that the government’s response, so far, has been enough to deter future attacks of this kind? And if not, what else would you think we should be doing?

Miss Yates, would you start out, please?

YATES: I think they’re coming back, and we have to do a whole lot more, both to harden our election systems, our state election systems, to ensure that folks out there know when they’re looking at news feeds, that it may not be real news that they’re reading.

I think that we have to do more to deter the Russians, and it wouldn’t hurt to prosecute a few folks, but I don’t think we should kid ourselves, that we’ll be able to prosecute our way out of this problem.

I want to say that there is absolutely no solution that Yates proposed in those two bolded parts of the statement that I’d be comfortable with, even though her testimony was totally patriotic and heroic and sure to win her a speaking opportunity at the 2020 DNC Convention.

First, how exactly do the federal and various state governments work to ensure, much less even judge, what is real or fake news?  I can’t really figure out what she’s proposing here.  Maybe some sort of state media outlet that functions as a version of Snopes?  Is any serious person willing to entertain that idea?

It needs to be said that even if you favor something like this, it would unquestionably be subject to abuse, depending on who happens to be in in charge of said state media “fact checking” at the time.  Additionally, its own credibility would become a partisan issue at every turn.

Be mindful that Trump bluntly called CNN “Fake News”, right to one of its reporter’s faces.  CNN hasn’t done itself any favors with its slanted coverage.  What would there be to stop the Trump White House from debunking stories posted by CNN or another news outlet and forcing social media sites to remove those stories it considered to be damaging?  This concept isn’t well-thought out, if that’s what Yates was suggesting.

The second part that bothers me is the implication that purveyors of Fake News who are possibly colluding with foreign interests should be investigated and maybe prosecuted.  This is not only perfectly anti-First Amendment on its face, but is even more ripe for abuse than the idea that the government should be evaluating the trustworthiness of crap your uncle posts on Facebook.  It would absolutely have a chilling effect on free speech and is therefore un-American.

First off, even if you’re delighted by the fact that Breitbart and Infowars are being investigated for foreign collusion to spread fake news, you should probably be asking yourself whether or not Trump could similarly direct his Attorney General to investigate Buzzfeed over it publishing the discredited Russian dossier.  Hey, it was fake and it was dependent on intelligence and misinformation gathered from foreign agencies, wasn’t it?  Why should that be exempt?  You want Trump to have that power and justification?  Good luck.

Second, I’d like to know what will happen if I start linking to articles from foreign news sources in 2020.  Am I going to become the subject of a FISA warrant simply because I might post about a story in Russia Today that later gets debunked during the next presidential election?  I don’t know, but you can bet your sweet ass that I’m going to test it.  Just because.

The bottom line is that the government regulating and even criminalizing free speech in the name of what it wants you to consider “truth” is exceedingly dangerous.  Worse, it is an attempt to solve a problem that’s not even a problem.  It’s a nuisance, sure, but it didn’t affect the outcome of the 2016 election.  I’m not going to favor any sweeping and intrusive solutions to imaginary crises, sorry.

We should avoid harming our own freedom to talk about bullshit in the name of protecting our bullshit-filled elections from overblown threats.  That would be a far worse outcome than anything Putin and all of his bots could ever inflict on us.

Let’s just call it what it is.  Targeting of “alt-media” outlets by Democrats is nothing more than attempt to restore the mainstream media’s dominance in shaping public opinions.  They’re fine with this as long as that media is friendly to them and providing what they consider truth to be.

This has nothing to do with truth and integrity in elections and everything to do with how threatened Democrats feel by the mere existence of opposition media.  Have no illusions about it.  We’ve seen this before with their efforts to re-institute the Fairness Doctrine and prevent people from airing documentaries that are critical of their presidential candidates.

I may not believe what you say, but I will defend to the death your right to tweet it.

20 comments

  1. It’s pretty obvious to me that Russia did, in fact, interfere with our elections. The absolute one sidedness of the leaking and scrutiny seems pretty obvious and the fact that this tactic played out in france’s election is the icing on the cake. There was the leak a day before the election, the terror attack and le pen’s coziness to putin all on display.

    The fact that probeseic and other alt right trolls were privy to france’s hacked information leads me to believe there’s strong evidence of collision between the American right wing and Russian hacking as well. With various prominent alt right writers for news outlets now being employed by Sputnik, cernovich being butt buddies with Donald trump jr. etc. I think there’s enough smoke to say there’s fire.

    The main issue the judicial arm hasn’t done to convince me there should be prosecution is provide a smoking gun that trump himself actually knew anything about this. I don’t think he did. I don’t think he even knew enough about it to tell his campaign to keep him misinformed. If it was done it was just done without him being aware of it. He’d be too much of a liability if he was in the know at all.

    As for fake news it’s out there and it’s definitely being employed. Andrew aurenheimer of the famous iPad hack conviction currently lives and works out of Macedonia and I doubt he’s working on a social media app. There’s just nothing in our constitution that protects us from this kind of disinformation and anything the government would do to combat the problem would be extra judicial imo.

  2. My point of view is this: of course the Russians tried to influence our election. What we should be questioning is why they would do that. It’s because we’re waging economic warfare against them for matters that don’t concern us.

    Ironically, them interfering in Western elections only guarantees that sanctions won’t be going away anytime soon. Talk about self defeating.

  3. I don’t think she is saying anything like that, at all.
    The first statement sounds to me more like a call for some sort of a public awareness campaign and more responsibility from our lawmakers themselves not to repeat fake news.
    The second statement refers to Russian hacking and doing something (prosecution) to ‘deter the Russians.’ I am not sure how you get from ‘deter the Russians’ to ‘violate the 1st Amendment.’ I didn’t read that as ‘prosecute some right wing publications,’ at all
    But hey, at least the Justice Department is not scrambling to find a way to fix the lies in her testimony, like they are with Comey’s. https://www.propublica.org/article/comeys-testimony-on-huma-abedin-forwarding-emails-was-inaccurate

  4. No, she really was talking about prosecuting Americans. Look:

    BLUMENTHAL: I thought that might be your answer.

    Finally, you said, Ms. Yates, that we’re not going to prosecute our way out of the Russian continued attack on this country. But putting Americans in prison if they cooperate, collude, aid and abet or otherwise assist in that illegality might send a very strong deterrent message, correct?

    YATES: I expect that it would, yes.

    Senator Blumenthal even cited the federal investigation into InfoWars and Breitbart right before that exchange. Yes, the Democrats do want to criminalize alternate media.

  5. My issue is the attempt by people in the media to obfuscate “Russia interfered with our election,” with the election itself being hacked or stolen. I saw several news shows on MSNBC and CNN back right after the election that tried to tie the two together without actually saying it, talking about Russian hacking, and in the next breath talking about hacked voting machines. Fake news at it’s best.

  6. They’re just desperate to shift the blame away from themselves and Hillary for losing. The Russians didn’t get a whole lot out of their interference considering she actually won the popular vote.

  7. She merely acknowledged that it would send a message. She might be for prosecutions but she didn’t say it in that sentence.

    Dave: pfluffy, that gasoline would sure make short work of the house.

    pflufy: I expect that it would, yes.

    Did I just advocate burning down my house?

  8. I wish I knew what to tell you. It’s pretty clear from the context of the conversations what she’s talking about. Blumenthal was extremely direct on this point and she didn’t disagree with him.

    Here’s the full, relevant exchange:

    BLUMENTHAL: Second, Director Clapper, on the issue of possible use of the far right websites by the Russians, you were asked earlier whether you have any knowledge about that potential cooperation or involvement. Do you have independent knowledge of the use of those far right websites?

    CLAPPER: I don’t. I don’t have, at least off the top of my head, specific knowledge or insight into that connection. Could have been, I just don’t know that directly.

    BLUMENTHAL: But you made reference to published reports. You said, I think, you knew about it from what you read about in the newspapers.

    CLAPPER: Well, that’s a specific reference to what happened in — occurred in France.

    BLUMENTHAL: Correct. And the same tactics that were used most recently in France were also used or at least reportedly used in this country?

    CLAPPER: Correct.

    BLUMENTHAL: And I’d like to put in the record one public report, there are probably others, a McClatchy report of March 20th, which begins with the lead, “federal investigators are examining whether far right news sites played any role last years in the Russian cyber operation that dramatically widened the reach of news stories, some fictional, that favored Donald Trump’s presidential bid.” It quotes tow people familiar with the inquiry and it goes on to mention, “Among those sites, Breitbart News and Infowars.”

    Mr. Chairman, if this report could be entered into the record.

    GRAHAM: (OFF-MIKE)

    BLUMENTHAL: Do you have knowledge, Ms. Yates, of that federal investigation?

    YATES: I don’t, and if I did, I couldn’t tell you about it.

    BLUMENTHAL: I thought that might be your answer.

    Finally, you said, Ms. Yates, that we’re not going to prosecute our way out of the Russian continued attack on this country. But putting Americans in prison if they cooperate, collude, aid and abet or otherwise assist in that illegality might send a very strong deterrent message, correct?

    YATES: I expect that it would, yes.

    BLUMENTHAL: And there are indeed criminal penalties existing on the books, we don’t need new laws, which involve criminality and potential criminal prosecution for those acts, correct?

    YATES: Yes, that’s right.

    If you want to keep saying that Yates doesn’t favor that, whatever. But it’s undeniable that Senator Blumenthal does. I don’t think he’s that far from the position of mainstream Democrats either.

  9. I have a bit of a vested interest in this issue – as I’m working on a (private sector) committee that’s looking into solutions for this. But first – let’s make sure that we’re talking about the right thing.

    The #fakenews thing, has expanded to mean anything that is reported that is possibly not true, biased, slanted or intended as propaganda. But that’s not what fake news is as an issue, and losing sight of that means we can’t deal with what could potentially become (and maybe has become) a big problem. Fake news isn’t Propaganda. CNN isn’t fake news – it may be crappy news, but it’s not fake news.

    The Daily Mail, Breitbart, and Daily Kos all print falsehoods and propaganda. But the editorial governance and the commercial model that traditional news outlets have mean that there’s an accountability they have to their readers to not misinform them. It’s why traditionally the most successful outlets are hundreds of years old. The job of editorial systems is to ensure the long term viability of the outlet with the public. Is this a perfect system? No? Is there a better one? No one has come up with one yet.

    #Fakenews should really be termed #fakenewsoutlets. These are temporary websites designed to look like legitimate news outlets, that purposely insert falsehoods into the news cycle with no accountability towards truth, or maintaining a readership based on trust.

    Think of it this way. Thrill, you make posts on this blog. The reputation of this blog, and the quality of the conversations here depend on people believing that you are who you say you are, and that you’re a straight shooter.
    But then a user named Hal100 posts that Pfluffy is a well known arsonist with multiple arrests for gasoline/house related crimes. This provokes debate, and while no one here believes it, it gets picked up by other blogs. Now Pfuffy is linked with being an arsonist on the internet. It impacts her reputation, and next time she goes for a job, Arsonist and Pfluffy are top of the google search.

    The reason I use this analogy is that obviously, the Government shouldn’t be preventing people from writing whatever they want on RVS. But RVS has a vested interest in ensuring that people carry on trusting this site, and don’t dismiss whatever Thrill posts legitimately as simple bullshit. So it’s incumbent on RVS to be more vigilant against bullshit.
    That’s why the answer lies in the Social Media Outlets themselves (FB, Twitter, Reddit etc) to come up with a solution that balances the democratisation of information with protecting their reputation as a useful resource for their user base. It’s not about censoring Fox or Kos. It’s about making sure people know that ‘Texas Daly Tribune’ isn’t an actual newspaper.

  10. See, I interpret that ‘finally’ as a segue to a new thought and I think they mean the actual hacking when they say ‘Russian attack.’ I believe that they are talking about prosecuting people who assist with the actual hacking.

  11. Aaand, Comey just got fired. You’d think Trump would be more grateful to the man who handed him the presidency.

  12. Then why did Blumenthal reference that there’s an FBI investigation targeting Breitbart and Infowars? They weren’t responsible for the hacking.

  13. This is eloquently stated and I agree with your main point. The onus belongs on the social media outlets to police themselves.

    For the rest, yeah, you just reminded me that I really need to finish RVS’s Terms of Service….

  14. That’s a legal black hole because if you aren’t the person that hacked it you’re free from prosecution if it can’t be proven you knew the information was obtained illegally. Even more frustrating for law enforcement is that our arcane legal system (you know, the one trump is appointing even more arcane people to) treats the internet as property, and defines what property is in the possession of the United States geographically. On its face that’s consistent but the issue becomes how it’s defined where a crime took place or “jurisdiction.”

    In our current legal example victim (referred to as “a” for convenience) resides in the United States and is the Democratic Party. The perpetrator (referred to as “b”) or Russian hackers are located globally but at least 99.9 percent outside of the United States. Typically a crime is considered committed at the point the victim (a) feels the effects of the injury or tortious conduct. That conveniently places the jurisdiction and venue with in the county, state, circuit) of the server.

    Where this becomes complicated is how it s treated for prosecution. If the hacking is considered criminal in nature “a” can report it and let the government sort the prosecution of the perpetrators “b” without much active involvement. However, though, if the identities of “b” cannot be obtained, and even if they are b resides extra judicially outside of the United States we have a huge legal clusterfuck on our hands. Certainly Hillary would have enough weight to actually have something like this criminalizes but as far as prosecuting it to conclusion there’d be nothing more than symbolic legal decisions that say someone is bad. There’s simply no way to have that many nations and police forces and laws cooperate to bring b in for a trial.

    Let’s say the matter becomes civil and Hillary decides she’s just going to hit the Russian government in the wallet and make a few shekels. Oh boy is that impossible. Since beyond the hacking itself, what Hillary suffered mostly from, legally defined is a civil matter. It was defamatory damage to her reputation and business. A criminal prosecution at least lets jurisdiction and venue not become complicated (or as complicated).

    The civil prosecution is a legal black hole. First a needs to find b. Second a needs to identify b and serve b. Third, a needs to really have a case for where the damages actually occurred because b is actually protected from malicious interstate prosecution and can argue a suit is frivolous in the filing stage. Lastly, if the potential defendants are a multi-party your venue is somewhere between where the damage was felt (a’s residence), and the difference in distance between the rest of the parties. Obviously this would be something federal do it would go to one of the circuits.

    In short, there is no logical legal recourse in our system that prevents people from making shit up about you and ruining your life. Sure, there’s feel good statutes like “defamation” that are here to make you feel like there’s some security but there’s literally zero legal safety net for what Russia did.

    Even on a criminal basis the actual hacking is the worst of it. Ok, you get a few years for hacking but remember that part about where the crime took place? Was it at the server? The node at which the defebdant’s peer connected to another peer connection? Was it in podesta’s email where he was phished? It sounds ridiculous but these technicalities can keep a case from being prosecuted due to technicality.

    We still have a system that says legal notice is a bulletin board. We have an honor system governing identity on the internet, and we treat server’s geographical locations as a point where crime is committed like a murderer’s entry point into a home.

    And we’re appointing judges that want to revert to more of these definitions.

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