Why I kick myself every time I make the mistake of reading a Glenn Greenwald column

>> Sunday, January 22, 2012

I don't know why I do it to myself. I have realized that Greenwald is at his best disingenuous and at his worst just a pure-all-out troll, and still every now and again when I'm over at Salon I end up seeing an interesting headline he or a Salon editor has written for him and I click on it and wham! I've gone and fucked myself again clicking a link to an article that, more often than not, will have me headdeasking again and again and again until I'm seeing more stars than the Hubble Space Telescope.

His latest tripe (as of this writing--Greenwald is prolific, I'll give him that) is worth mentioning here just because it's sort of related to last Wednesday's post here. Like everybody else on the Internet, just about, Greenwald has some things to say about SOPA/PIPA and the subsequent announcement of the Megaupload indictments. Of course he's horrified: civil libertarians may think they won a victory with the shutdown (for now) of SOPA and PIPA, but really they've won nothing because all these bills would have done is codified the existing overreach of the nefarious and evil government, which already (Greenwald claims) has the power to shut down websites willy-nilly, and already exercises it at the twirl of a long moustache.

Go take a look if you'd like, but it's about the stupidest thing anyone's said about the whole business, and I'm including a number of poorly-spelled and grammatically-challenged 140-or-less Twitter farts in that comparison.

For those who are late to the Internet, just after various members of Congress backed away from SOPA and PIPA after a massive online protest and lots of petitioning, the Justice Department announced indictments against the owners of the filing-sharing site Megaupload, along with their arrests abroad for extradition to the United States for trial. Megaupload is, or was, or was and still is, a website that allowed people to upload large files to Megaupload servers, and then those users could publish links to that content on their own pages, allowing other users (in turn) to access the servers and download the content. There's a wonderful explanation of how all this work(s)(ed) by Bill Wyman over at Slate that's worth a look, especially if you've never... ah, if you've never had a friend use Megaupload to download a file. (Yes. That's it: a friend. His... or her... name will come to me in a moment, I'm sure.)

File-sharing sites, like peer-to-peer sharing (P2P) sites, are not necessarily per se copyright violators, as Wyman covers. My primary use of P2P these days is to get the latest Linux distro if I'm having to do a clean install from disc or USB stick. The primary file-sharing site I use is Dropbox, and my use for it is entirely legal: I can sync writing projects between multiple computers so that, for instance, a short story I start writing on the netbook while I'm out at a coffee shop automatically shows up on my desktop-replacement notebook when I get home. Journal notes, virtual index cards, storylines, etc. kept in Writer's Café show up on both machines (and, since we're talking about legal use: yes, I actually have two licensed, purchased copies of Writer's Café, by the way).

But--and again, Wyman covers this pretty thoroughly--the fact is that Megaupload wasn't exactly running that kind of business: Megaupload, in spite of any disavowals from the owners, was extensively, if not primarily, in the business of re-distributing third-party content, i.e. material that is or was copyrighted (there is certainly a great deal of material on Megaupload that was copyrighted, but the copyright has expired without renewal or the work has fallen into that great abyss between the realms of copyright and the public domain--works that are possibly technically still under copyright, but the holders no longer exist or can no longer be found). If you've used... heard of someone else using the site, you may be aware that it isn't set up the way Dropbox is to facilitate bouncing one's own files around, and while I'm sure you could use it that way, it's horribly inefficient in much the same way using Dropbox for redistributing large files is a bit clunky. (Having once used Dropbox for a pretty large backup in an emergency--it was a ridiculously bad idea, one that took several days because of the way Dropbox logs new files.)

But, you know, the real problem with Greenwald's post on the subject isn't that Megaupload is, frankly, probably guilty of what the government's accusing them of. Guilty people have rights, too. (I do make my living, such as it is, from this very premise, you know.) The real problem is Greenwald's fundamentally dishonest approach to the whole thing. See if you spot the horseshit:

But just as the celebrations began over the saving of Internet Freedom, something else happened: the U.S. Justice Department not only indicted the owners of one of the world’s largest websites, the file-sharing site Megaupload, but also seized and shut down that site, and also seized or froze millions of dollars of its assets — all based on the unproved accusations, set forth in an indictment, that the site deliberately aided copyright infringement. [emphasis in original]

Indictment by Grand Jury is considered one of the cornerstones of Anglo-American jurisprudence and a foundation of Due Process. It isn't tantamount to a conviction: the burden of proof sufficient for the return of an indictment is based on a probability instead of a moral certainty, that is: a Grand Jury may indict based upon a preponderance of the evidence, and is not required to make findings beyond a reasonable doubt as required for criminal conviction by a petit jury. Furthermore, the presentment to a Grand Jury is generally one-sided: the state presents evidence while a suspect may not even have notice that the state is seeking indictment.

That being said, a lower burden of evidence is still evidence and preliminary procedures are still process. The United States Government moving against Megaupload by getting a signed Grand Jury indictment--i.e. having presented at least some evidence of statutory violations to a duly-constituted-and-convened group of ordinary citizens--and proceeding via in rem proceedings against Megaupload's property with a court order obtained through proper proceedings before a Federal judge--isn't tyranny as Greenwald is practically peeing himself to imply, it's how things work under our system of laws and have worked, more or less, since the nation's founding. You certainly don't have to like it, but then you just need to go ahead and own up that you don't like the American legal system and want it replaced by something else entirely. Greenwald is being an ass: he either doesn't know what he's talking about or he just doesn't care because he thinks he's scoring points this way; I'm inclined to think it's both of these things.

It rankles me. It just rankles. Greenwald is an opportunistic troll who posits himself a civil libertarian crusading to uphold the laws against ever-encroaching government tyranny, except that he's more than ready to go and accuse the government of lawlessness even when the government is actually proceeding in a completely legal manner. It may lift him up in his own mind or the minds of his adoring throng, but it disparages the hard work of those on both sides of the legal process who are attempting to follow the rules and do the right thing by the books. Do I think the Grand Jury process is perfect or can't be reformed? No, but if that's the rules we're playing under, don't accuse anyone of lawlessness when they're following those rules; just as vitally, while I have deep concerns about how Grand Juries actually end up working in practice, I hardly have a better idea to replace them with, and if I did, I still think Megaupload would be facing whatever substitute criminal process anyone came up with. And if Megaupload faces a difficult time of it comparing their resources to defend themselves against the resources the government might set against them, well, yes, I have a problem with that, but it's a problem faced by every single criminal defendant facing the due process of law as it's currently constituted.

Greenwald disparages due process even as he's supposedly defending it: the proprietors of Megaupload face extradition proceedings in New Zealand and any other countries they were arrested in, and presumably will get whatever due process Commonwealth law gives them (n.b. Greenwald is happy to bash American legal proceedings, but doesn't mention that much of the property seizures are occurring in New Zealand and this is where Megaupload founder "Kim Dotcom" has been arrested pending extradition to the United States; presumably "Dotcom" will receive the benefit of law and opportunity to fight extradition and contest the seizure of property by New Zealand authorities: I must suppose that either Greenwald doesn't understand this or he simply hates the entire Anglo-American system of jurisprudence going all the way back to the Magna Carta); if extradition is waived or granted, Megaupload will have the benefit of a trial in Federal court (or, if they decide to plead for whatever reason, perhaps under Alford, the benefit of a filed plea agreement and hearing before a sentencing judge or magistrate); and, assuming Megaupload is convicted, they'll have the benefit of appealing the case to the appropriate Federal circuit or perhaps even as far as the Supreme Court Of The United States should they wish and cert granted. What more do you want? What more is there, actually?


John the Scientist Monday, January 23, 2012 at 11:04:00 AM EST  

I totally agree with you. There has to be some recourse for IP. Even the Indians and Chinese have figured this out - once they started having originial IP to defend and their economies were no longer solely parasitic on the West.

But letting anyone take down a website based on an accusation will leave the internet looking like it was hit by a neutron bomb - the servers and infrastructure will be there, but there won't be any people in them.

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