Wednesday, January 26, 2011


This article originally ran in the 1.27.11 issue of Metroland

I was more than a little saddened to see that Keith Olbermann was taken off his 8 PM perch at MSNBC. There was a time I watched his show, Countdown, religiously, every night. I’d miss him over the weekend, when MSNBC turns into just another stupid exploitive cable station.

But I haven’t watched Keith in a while. He had gotten shrill, predictable, and more than a little sanctimonious. His “expert guests”, inside-the-beltway heavies like Howard Fineman, Richard Wolffe, Eugene Robinson, and Jonathan Atler were reduced to sycophantic yes men night after night; Olbermann’s questions to them would be long, rambling expositions of whatever he thought about something, ending with something like “isn’t that right?” and the answer would invariably start with “Yes, Keith and...” It was all so disingenuous and dogmatic and sad.

But even though I stopped watching, I was comforted knowing he was still on the air, that he was ready to pounce when we needed him. Because he always did.

Remembering back to the Bush years, Keith was the first and for a long time the only person in mainstream media who stood up to the post 9/11 mania, to the invasion of Iraq, to the hideousness that became the executive branch of government, and he called them out on no uncertain terms. Night after night. Nobody else had the balls. His early “special comments” were the impassioned, rational, wake-up-dammit speak-to-the-power missives that no one else on television was making, and that we so desperately needed. And I rarely disagreed with a single word he said. Whatever else he does, whatever else happens to him, Keith Olbermann will go down as a giant of editorial journalism, and of the resistance to the fascist takeover of our nation by the neocon, corporate, Murdochian and teabag right-wing.

He’s also responsible for bringing Rachel Maddow to the national stage. She has proven herself to be one of the most astute (and fun) political commentators the world has ever seen. And we have Keith alone to thank for bringing Rachel into our lives. Name me one other person in the mainstream media who would give a shot to an outspoken openly gay female with an attitude, someone with little on her resume but some airtime at a failing liberal radio network. And Keith first put her on mano-a-mano with arch-conservative former Nixon speechwriter Patrick Buchanan, who may be a lot of things, but he sure ain’t dumb. And she charmed him and smoked him at the same time. Keith trusted her, and she delivered.

Keith built the MSNBC we know today. The only other person there who’s close was Chris Matthews, who means well, I suppose. But Matthews is, if anything, more annoying than Olbermann, a political rat who’s not really capable of building a thing, and who surfed Keith’s wake to success.

The scuttlebutt is that it’s the Comcast merger that did Keith in. To prove that is kind of like trying to prove that Sarah Palin’s violent rhetoric pulled the trigger on Gabrielle Giffords. I dunno about that. Look, since its inception MSNBC has been owned by General Electric, for crying out loud. Do you really think a takeover by Comcast would to be make the atmosphere more oppressive?

Maybe we’ll never find out, although I’m hearing rumblings that Keith has been wanting out for at least a year. Maybe he was getting as bored with the shtick as we were. He always has been a little on the restless side, famously quitting ESPN in the 90’s quitting and getting fired from Fox News for insubordination just before coming to MSNBC. That is to say, just before coming back to MSNBC, where he’d walked off his news gig in 1998 because he was sick of reporting about Monica Lewinsky.

So where does he go from here? There’s talk of his building an online “media empire” a la The Huffington Post. I just don’t see that working, I don’t see people flocking to a website to get a dose of Keith. There’s also talk of his joining an HBO project being developed by Aaron Sorkin (The Social Network, West Wing) about the behind the scenes goings-on at a cable news network. Which sounds interesting, but not interesting enough to get me to sign up for HBO again.

In either case, he’d be marginalized, a long was from the middle of the fray, which is where we need him to be. We need him in the fight in real time, dropping bombs on the hypocrites and corporate stooges that comprise much of the Republican Party and the Right Wing. Because nobody else does that like Keith Olbermann. Maybe he just needs to cool his jets a little, and then come back to nightly cable. I hope that’s it.

Wednesday, January 12, 2011


This article originally appeared in the 1.13.11 issue of Metroland

I’ve rung this bell a bunch of times in the past and I’m gonna keep ringing it:
Your right to privacy is slowly and steadily going down the dumper. Something happened last week that demonstrates this in spades.

California’s highest appeals court ruled last week that it’s perfectly legal for police to rummage through the cell phone of someone who is under arrest. The Court based its decision on 1970’s era Supreme Court precedents that held that police may inspect and examine whatever they find on a person after that person is arrested. The case involved a drug bust where the arresting officer found text messages on the defendant’s cell phone that further implicated the defendant in a drug sale.

Do those rulings make sense if they are extended to cellphones? As smartphones become increasingly powerful and popular, court decisions like this become increasingly problematic. Smartphones are quickly encroaching into the territory previously occupied by home computers, and between increased power and memory and the growing use of cloud-based computing and storage, a smartphone can hold or be a conduit to massive amounts of personal information.

A few years ago when the RIAA was suing thousands of kids for downloading songs, I argued here that the courts’ usual practice of allowing the RIAA to inspect the hard drives of the kids’ computers to find evidence of downloading was hideously invasive, because a serious computer user’s hard drive is very much an extension of the user’s brain. To force a kid to give up his hard drive for inspection as a condition to allowing the kid to defend himself in a copyright infringement lawsuit struck me as absurd. I was hoping that the right client would come along so that I could make this argument in a court somewhere, but none of the cases that I handled in the RIAA terror campaign got to that point.

The same considerations apply here, except here the ramifications are so much worse. A cop can take you into custody for any kind of crime, even a DWI, and then take a look at whatever your smartphone might reveal: your emails, your texts, your photos, your contacts, documents, links, the whole nine yards. Clearly there is a profound lack of balance between the effects of this ruling and most people's expectation of privacy. It’s like Orwell on steroids.

I used to think that rulings like this were the result of geriatric or technophobe judges who just didn’t understand the world of computers and the internet. But this was a 5-2 ruling by the highest court in California, and these judges have shiny bright law clerks fresh out of law school doing their research, and the march of time has made an understanding and appreciation of today’s technology pretty much universal.

In any event, this decision is at odds with several previous decisions from other courts that have held that searching ones cellphone or computer after an arrest is indeed a breach of privacy and unconstitutional. This conflict among courts could set the stage for the issue to be looked at by the Supreme Court.

Which of course raises some more troubling problems. The Supreme Court hasn’t taken on many right-of-privacy cases lately and hasn’t addressed the right in any kind of comprehensive way in a long time. And the Court as it is currently constituted could have a problem with the right of privacy. You see, the word “privacy” doesn’t appear anywhere in the Constitution or the Bill of Rights. The right of privacy we’ve known all of our lives was constructed by judges, who believed the right could be inferred from various guarantees in the Bill of Rights to create a “penumbra” of a right to privacy.

Several of the justices on the Supreme Court, most notably Justice Antonin Scalia, don’t buy into the whole penumbra deal. They are strict constructionists, or “originalists”, who insist that the Consitution must be read narrowly and interpreted pursuant to the intent of the guys who wrote it. In 1787.

Just last week Scalia said in a speech that he didn’t think the Constitution or the Bill of Rights provided for equality for women. Think about what that means. Think about how that jibes with your understanding of the world, of your country, of the law. And then come to grips with the fact that there are people on the Supreme Court of the United States who not only believe this, but are in the position of being able to impose this belief, and other similarly shocking beliefs, on you.

So what happens if this cell phone case makes it to the Supreme Court? By any measure of rationality, it should be reversed based on the right of privacy. But we don’t live in a rational world.