Friday Morning (Somewhere, Maybe in Alaska): Rhapsodic

Friday, you old dog, you. You came back once again, a little worse for wear but alive and kicking. Let’s see what kind of jazzy treat we can cook up for you.

Ah, let’s have some Third Stream (not to be confused with neoliberalists’ Third Way). Music in this not-quite-jazz subgenre walks the line between classical music’s formality and jazz’s improvisational nature. This isn’t chamber jazz — jazz performed on chamber instruments, discussed in a previous Friday Jazz post. Third Stream is composed work heavily influenced by jazz, played by an orchestra.

In the example shared today, George Gershwin’s Rhapsody in Blue, this is a composition without improv, but with strong jazz and pre-jazz elements. You can hear the pre-jazz particularly well in the piano; by pre-jazz I mean ragtime, using rapid, “ragged” hand movements (note this sound as early as 1:35 in the music video). The example here is a performance of the original composition using a 24-piece jazz band. Do open the video and play at YouTube’s site in order to expand and read the notes accompanying this piece. Compare this version to a performance based on the later arrangement of the same piece for a full orchestra (ex: Leonard Bernstein and New York Philharmonic, compare ragtime-like keyboarding at 2:09).

And then poke around and enjoy some other Gershwin. It’s a nice way to start the weekend.

All about the (free) speech
Good gravy. This week has been a mess when it comes to free speech and the media. Hard to pick a starting point, there’s so much content. Let’s begin with the circus-like story and a bit of a tick-tock for n00bs unfamiliar with it.

• December 2007 — Gawker’s Valleywag outed technology venture capitalist Peter Thiel. Thiel is a co-founder of PayPal and Palantir, and a major investor in Facebook with a seat on its board of directors.
• October 2012 — Gawker published part of a sex tape showing Hulk Hogan engaged in sex with radio personality Bubba the Love Sponge’s wife about six years earlier. (Christ, I couldn’t make this shit up if I tried.)
• November 2015 — Hogan sued Gawker for defamation, loss of privacy, emotional pain.
• March 2016 — Court found for Hogan, awarding him $115 million.
• May 24, 2016 — Hogan’s lawsuit financier revealed — it’s Peter Thiel.
• May 25, 2016 — Gawker tried to get award reduced; the media outlet has already been forced to sell a sizable portion of itself to fund the award to Hogan.
• Today — Denton published an open letter to Thiel with a mess of questions, some focused on the legitimacy of Gawker media. It’s a fair question when Facebook is under fire for its presentation of news content to its users.
• Speaking of Facebook, the now-open warfare between Thiel and Denton casts a different light on the stories Gawker property Gizmodo published about Facebook. You’ll recall the furor raised among conservatives after Gizmodo relied on a single conservative contract-employee as a source for its claim that Facebook filters out conservative media.
• Media outlets are very concerned about the future, especially if Trump is elected to the presidency (see also CNBC’s opinion‘s mentioning a chilling effect, suggesting investormnt media very concerned). Billionaires shopping for cases to wipe out small-to-medium-sized media outlets could become more common where laws prevent the use of strategic lawsuits against public participation (SLAPP). Trump has admitted to using litigation to harass or punish media.

Bottom line: Reporting on someone’s sexuality and outing them merely because they’re a hypocrite isn’t adequate reason to do so. Some rich people are going to be asses as they have been through history; media should report when wealth’s actions affect the public’s interests. But using one’s billions to burn down the entire Fourth Estate isn’t merely revenge against careless journalism. Attacks intended to weaken a media outlet are attacks on the First Amendment in general; this only exacerbates inequality, and it’s fundamentally unAmerican.

And now speech having nothing to do with the above…

• Exxon shuts out The Guardian, denying access to annual meeting (The Guardian) — Well, here’s another method the rich use to squelch free speech. Exxon’s meeting included shareholder proposals related to climate change, but The Guardian was deemed too biased to cover this meeting. The board shot down climate change-related measures; at least these decisions were cut-and-dried enough for other media outlets permitted access by Exxon. Will shareholders move to replace enough directors to force Exxon’s business model to plan for climate change? Or should the public demand legislation requiring fossil fuel companies receiving any federal subsidies “publish an annual assessment of long term portfolio impacts of public climate change policies”?
• South Africa, Russia and China blocked The Committee to Protect Journalists’ consultative access to U.N. this week (Reuters) — This ‘press freedom watchdog group’ will not be allowed to participate in U.N. events. Can’t imagine why these countries would do such a thing, can you?
• Vietnamese government shuts off Facebook access shutdown during Obama’s visit (Reuters) — No organizing embarassing protests for you, citizens. (Gee, Mr. Thiel, what do you think of this development?)
• So-called investigative journalist screws himself over because sloppy and stupid (The New Yorker) — Read this bit by Jane Mayer on James O’Keefe and how he pants’d himself while trying to ratfuck Open Society Foundation. How anybody trusts this guy with a sharpened pencil is beyond me. What a maroon.

Long Reads
Hey. You could use a couple for your road trip to your summer weekend hide-out destination. Try these:

• The Bank Robber (The New Yorker) — Great piece on an unreliable character, Herve Falciani, who ‘liberated’ client data from HSBC while working in IT at its Swiss facility. Wonder who’s buying the film rights?
• Welcome to Disturbia (Curbed) — Interesting look back at the origins of our suburbs and how they were then perceived as toxic. A look at bowling alone, long before Bowling Alone.

That’s a wrap on this week. See you Monday!

Ben Wittes’ Delusion: FBI IS the Intelligence Community

Ben Wittes has started a series of posts on how to tyrant-proof the presidency. His first post argues that Jennifer Granick’s worries about surveillance and Conor Friedersdorf’s worries about drone-killing are misplaced. The real risk, Wittes argues, comes from DOJ.

What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That’s very doable. He’d want to keep his communications with that person limited. An unspoken understanding that the Justice Department’s new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have. Want to go after Jeff Bezos to retaliate for the Washington Post‘s coverage of the campaign? Develop a sudden trust-busting interest in retailers that are “too big”; half the country will be with you. Just make sure you state your non-neutral principles in neutral terms.

[snip]

There are other reasons to expect a politically abusive president to focus on the Justice Department and other domestic, civilian regulatory and law enforcement agencies: one is that the points of contact between these agencies and the American people are many, whereas the population’s points of contact with the intelligence community are few. The delusions of many civil libertarians aside, the intelligence community really does focus its activities overseas. To reorient it towards domestic oppression would take a lot of doing. It also has no legal authority to do things like arresting people, threatening them with long prison terms, fining them, or issuing subpoenas to everyone they have ever met. By contrast, the Justice Department has outposts all over the country. Its focus is primarily domestic. It issues authortitative legal guidance within the executive branch to every other agency that operates within the country. And it has the ability to order people to produce material and testify about whatever it wants to investigate.

What’s more, when it receives such material, it is subject to dramatically laxer rules as to its use than is the intelligence community. Unlike, say, when NSA collects material under Section 702, when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it. It has countless opportunities, in other words, to engage in oppressive activities, and it is largely not law but norms and human and institutional decency that constrain it.

I don’t necessarily disagree with the premise. Indeed, I’ve argued it for years — noting, for example, that a targeted killing in the US would look a lot more like the killing of Imam Luqman Abdullah in 2009 (or the killing of Fred Hampton in 1969) than drone killing of Anwar al-Awlaki in 2011 (given that Abdullah’s selling of stolen items got treated as terrorism in part because of his positive statements about Awlaki, it is not inconceivable FBI started informing his mosque because of SIGINT).

My gripe (I have to have gripes because it is Wittes) is on two points. First, Wittes far overestimates how well the protections against abuse currently work. He seems to believe the Levi Guidelines remain in place unchanged, that the 2008 and 2011 and serial secret changes to the Domestic Investigations and Operations Guide since then have not watered down limits on investigations for protected activities. He suggests it was a good thing to use prosecutorial discretion to chase drugs in the 1990s and terrorism in the 2000s, and doesn’t consider why the rich donors who’ve done as much damage as terrorists to the country — the banksters, even those that materially supported terrorists — have gotten away with wrist-slap fines. It was not a good thing to remain obsessed with terrorists while the banksters destroyed our economy through serial global fraud (a point made even by former FBI agents).

We already have a dramatically unequal treatment of homegrown extremists in this country based on religion (compare the treatment of the Malheur occupiers with that of any young Muslim guy tweeting about ISIS who then gets caught in an FBI sting). We already treat Muslims (and African Americans and — because we’re still chasing drugs more than we should — Latinos) differently in this country, even though the guy running for President on doing so as a campaign plank isn’t even in office yet!

The other critical point Wittes missed in his claim that “delusional” civil libertarians don’t know that “the intelligence community really does focus its activities overseas” is that DOJ, in the form of FBI and DEA, is the Intelligence Community, and their intelligence focus is not exclusively overseas (nor is the intelligence focus of other IC members DHS — which has already surveilled Black Lives Matter activists — and Treasury). The first dragnet was not NSA’s, but the DEA one set up under Bill Clinton. One big point of Stellar Wind (which is what Wittes mocked Granick for focusing on) was to feed FBI tips of people the Bureau should investigate, based solely on their associations. And while Wittes is correct that “when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it,” it is equally true of when FBI gets raw 702 data collected without grand jury scrutiny.

FBI can conduct an assessment to ID the racial profile of a community with raw 702 data, it can use it to find and coerce potential informants, and it can use it for non-national security crimes. That’s the surveillance Wittes says civil libertarians are delusional to be concerned about, being used with inadequate oversight in the agency Wittes himself says we need to worry about.

Four different times in his post, Wittes contrasts DOJ with the intelligence community, without ever considering what it means that DOJ’s components FBI and DEA are actually part of it, that part of it that takes data obtained from NSA’s surveillance and uses it (laundered through parallel construction) against Americans. You can’t contrast the FBI’s potential impact with that of the IC as Wittes does, because the FBI is (one of) the means by which IC activities impact Americans directly.

Yes, DOJ is where President Trump (and President Hillary) might abuse their power most directly. But in arguing that, Wittes is arguing that the President can use the intelligence community abusively.