What if lawyers representing the Times-Picayune argued on behalf of the First Amendment rights of anonymous commenters, and shortly thereafter archived comments — the very expression of those rights — were disappeared from the Nola.com website?
Gnaw on that unsettling possibility while we catch up on Commentgate.
Two federal judges recently summarized findings from the Justice Department’s Office of Professional Responsibility (OPR), which concluded that disgraced former federal prosecutors Jan Mann and Sal Perricone were likely the only ones in then-U.S. Attorney Jim Letten’s office to have commented inappropriately on NOLA.com. The report also claimed Mann and Perricone were unaware of each other’s mischief, and Letten, their boss — a former intelligence officer in the U.S. Naval Reserve — was also clueless about chicanery by his longtime lieutenants.
Thus, according to the OPR, the only two prosecutors from the local U.S. Attorney’s Office to play around in the regions’ most heavily-trafficked comments section have already been unmasked. Pretty convenient finding for the Feds, don’t you think?
If smell-tests are any indication, this doesn’t seem to be the “clear, unequivocal and all-inclusive reliable report” that U.S. District Judge Kurt Engelhardt hoped for, but failed to receive, prior to his blockbuster order overturning the Danziger verdict. Engelhardt’s skepticism of federal investigations into government misconduct led him to relentlessly probe the issue until he learned that the Commentgate trail of misconduct stretched from New Orleans all the way to the Department of Justice in D.C..
The OPR report, like the Horn report before it (which was centered on comment activities related to the Danziger trial), is being withheld from public consumption. Engelhardt had little confidence in either investigation, and neither should we. But the OPR report doesn’t appear to be a complete whitewash.
According to the summary by U.S. District Judge Mary Ann Vial Lemmon and U.S. Magistrate Judge Joseph Wilkinson, it comes down hard on Mann and Perricone, concluding that they engaged in “extensive and intentional prosecutorial misconduct,” some of which might be “material and discoverable” — and thus useful for other defendants seeking to have their cases dismissed.
Surely defense lawyers will take that cue, and Commentgate will creep along, in fits and starts. Former New Orleans Affordable Homeownership program chief Stacey Jackson apparently won’t be helped. Wilkinson and Lemmon threw a wet blanket over her lawyer’s efforts to identify the commenters behind three usernames under stories about Jackson’s alleged fraud.
After compelling Nola.com to deliver username info, they found that “jammer1954” wasn’t a federal prosecutor. In the case of “aircheck,” a username that some have suspected was Letten himself, no identity could be ascertained. And finally, the judges ruled that comments by “kefir” were “not sufficiently similar to the comments known to be attributable to Jan Mann and Perricone in tone, word choice, frequency, style or content.”
My first thought after reading the news about the judges’ conclusions was: What about “urantia”? Why didn’t Jackson’s team investigate that alias? That’s the username associated with comments I see as very similar in tone, word choice, frequency, style and content to those by “aircheck.” If info from both accounts could be obtained, perhaps it would establish that they are the work of the same author.
Don’t believe my suspicions about the similarities between “aircheck” and “urantia”? Good! Just click the links above and compare the comment histories for yourself. Oh, wait, you can’t. They used to be available, but during a modification of the NOLA.com comment archives that occurred, I believe, last year, comment histories for non-active users became inaccessible. The user profile pages don’t even disclose the total number of comments made. For example, if web archive pages are correct, over 2,600 comments were made by “aircheck” and “urantia.” What did they say in all those comments? Good luck finding out.
Unfortunately, a more recent overhaul of the NOLA.com comments section has made forensic investigation of suspicious comments even more difficult. The old permalinks to many comments are now dead and inoperative. For example, this permalink to one of the postings made by Perricone under his “campstblue” pseudonym returns “Page not found.”
The new timestamps for the comments couldn’t be less helpful. They basically show the date the comment was written, rather than the specific time so that that readers can judge elapsed time between comments. (For example it might be assumed that a redundant comment timestamped a minute after another indicates that the author hadn’t seen the earlier opinion.) The deleted timestamps make them a step or two away from being totally useless.
It’s not a minor problem. Every scintilla of data in Commentgate is potentially valuable. For example, not long ago one could go to the following story link: and see these comments in sequential order:
aircheck: I resolve to host a large party after $Bill is tried and convicted. Wednesday, December 31, 2008, 2:00:22 PM
urantia: Hey Aircheck: I even buy the drinks ! Wednesday, December 31, 2008, 2:01:52 PM
Interestingly, “urantia” chimes in only 90 seconds after “aircheck” posts (this happens repeatedly between the two, likely indicating the same author is using deceptive sockpuppetry — different accounts on the same thread).
So, to review: in the past, the profile links found in the comments would take you to a working-user profile page with a list of archived posts that you could inspect; the timestamps on those posts showed the actual time, down to the second in some cases; and the permalinks to individual postings functioned. Now, it seems, none of those basic elements of the comment section are in working order at NOLA.com.
Odder still, when you go to the New Year’s eve story link, the “urantia” comment is inexplicably missing. What’s the deal? Have the archives been purged? Emailed requests for an explanation of the new system sent to the NOLA.com engagement team yesterday were not answered prior to publishing this column.
Here’s a similar example: The web archive shows there were, at one time, 63 comments to the story of Utah’s upset of Alabama in the Sugar Bowl, including this quinella:
aircheck January 02, 2009 at 9:04 pm: Just like I predicted earlier today, UTAH will surprise Bama !!!!!!!!!!!!!!!!!! HAHAHAHAHAHAHAHAHAHAHAHAHA>>.
urantia January 02, 2009 at 9:06 pm: Sabin had to change his underwear at half-time !
Note the times. But now, in the current iteration of the story, it (weirdly) says only 13 comments exist (though 52 appear). “Aircheck’s” posting is still visible, but there is no sign of “urantia.”
Here’s another example, a web archived version of a 2008 story by Gordon Russell titled “Judge rules that lawyer Ike Spears can no longer represent Mose and Betty Jefferson” shows 47 comments including this one:
Posted by urantia on 09/17/08 at 12:25 pm: Jefferson tribe = 100% criminals.
That’s a sentiment utterly typical of both “aircheck” and “urantia,” by the way. However, after the various comment overhauls the “updated” version of the page reveals only 19 comments. The posting by “urantia” is one of the 28 missing comments.
These omissions and mysteries are more than just a nuisance to Commentgate obsessives. I suspect thousands of old comments are currently missing. Remember, the comment archives are the central evidence in this scandal. Unlike many of the other facts of the scandal, they haven’t been filtered through the biased and narrow agendas of criminal defense attorneys, or obscured by sealed government reports. Now it appears that NOLA.com site and comment systems overhauls have made it well nigh impossible to do forensic analysis of the comments.
Lawyers for NOLA.com have strenuously argued for the First Amendment rights of anonymous commenters. Partly it’s about profit. (Comments, perhaps especially the most obnoxious ones, draw traffic to a website, which is why owners resist calls from the community to require commenters to use their real names.) But the T-P has always been a sincere and deep-pocketed defender of press freedoms and free speech — which makes it only more disappointing to see the site archives become increasingly impenetrable and incomplete.
Hopefully this is just a temporary migration issue, and complete archives, links and timestamps will be restored soon. If not, one can only speculate why NOLA.com would want to appear as if it was making its site less transparent. Sure, NOLA.com owns the forum, and can do what it wants, but given the incredibly high stakes involved — retrials, misconduct and a host of unknowns — I think there is a public interest in discovering what government prosecutors said in their online forums. To do that, the comment archives need to remain intact.