The problem was, however, that the story didn’tt hold up. Each of the eleven other jurors swore under oath (something the original complainant refused to do) that her version of events was erroneous, that the emails were out of context and misrepresentative. The Times ran their follow-up story on a Saturday, on page A18.

It takes no imagination to see how this story has echoes in the current environment. The Journolist emails, of course, and Drudge’s speculative front page story yesterday about “improper contact” between Google and the Administration. The absolution of the scientists in the “Climategate” incident, similarly maligned for selective emails, has also been criticized for lacking follow-up from the media outlets that trumpeted the original accusations.

Here, I’ll admit my bias. I was one of the eleven jurors; an excerpt of one of my emails appeared in that front page Times article. And, after many affidavits back and forth, the court has not yet ruled on the solitary juror’s original claims. But as I said, the story echoes, this week in particular.

We may have entered a golden age of email scandals. There are a number of reasons that emails, in this moment, are a tool ripe for employment – or exploitation – in politics, the law, and relationships.

Email is still new.

In the context of human history, obviously. But even in the context of communications.

Think about how it differs from older forms of communication. There’s the immediacy, of course, but there’s also the simplicity of archiving it. One’s desk drawers don’t have to overflow with old correspondence – it just sits there, on your desktop or in your organization’s backup files, waiting for someone to search “Weigel” or “die in a fire.” And as it travels across the internet, it often does so without encryption. The old saw about email being like a postcard that every mailman can read has an element of truth.

Here’s another way in which it is different than older forms of communication. There’s an implied letterhead on every email sent from a company or organization, that little trailing domain after the @ symbol. If you send an email from an army.mil domain, you are sending an email from the Army. From foxnews.com or from nytimes.com – those emails can be interpreted as though you are acting on behalf of those companies.

The end result will probably be less candor, and perhaps less immediacy, in emailed communications. When this happens, it will spell the end of this golden age.

But that candor and immediacy will transfer (and has transferred) to other media – instant messaging, texts, BBMs – where the same problems will soon start to crop up. In the legal case I mentioned at the outset, a text message was used in an affidavit responding to the isolated juror’s claims. In two years time, I’m going to re-release this post, doing a find-and-replace for “email” and “text”.

An individual email is often just an excerpt of a conversation.

What Andrew Breitbart was to the Sherrod video, the Daily Caller is to “Journolist”. Each broadcasts only the most incendiary parts of a discussion, with all of the subtlety of tossing a grenade.

It is rare that a stand-alone, one-off email will be of much interest. Usually, those emails that elicit a furor are part of an ongoing conversation between the sender and recipient.

Presenting only part of a discussion to make a political or personal point may be effective over the short-term, but over the long-term the audience is owed the full context for the conversation in order to fully assess its impact.

Contrast email in this regard with, oh, I don’t know, voice recordings. In addition to the overhead in recording and storing a conversation, surreptitiously or not, a snippet of recorded conversation demands release of what preceded and followed it. RadarOnline couldn’t release only Mel Gibson’s furious invectives, they had to release the whole thing, because they knew people wouldn’t accept only his side as representative. Yet, for some reason with email, they do.

Voice recordings do have an advantage over email in this regard: emotion. Were Gibson’s words type-written, it’s certain they would lack the emotional power they carry when you hear them in his familiar voice. But again, that lack of emotion can make email a tool for triggering scandal.

There was a sketch comedy show about a decade ago that had a skit in which a witness at a trial was examined. He confessed to the crime with heavy sarcasm to the amusement of the jury and audience. But when the prosecution had his words read back, the cold statement (something like “Oh yeah, I killed him.”) shifted meaning.

It was a comedy sketch, but we’ve all had that experience – an email being misinterpreted when the tone of it is misunderstood. Now imagine that email being read by someone who you’d never intended to read it, perhaps someone looking for evidence of wrong-doing. Perhaps someone with the improbable name of “Tucker”.

The Freedom of Information Act just got a lot more robust.

It used to be that FOIA requests took time to compile. When it became law in 1967, responding to a request was not trivial. Even if the respondent wanted to do so as quickly as possible, it still took a long time to look through old documents and filings.

Not so anymore. While still more complicated than searching one’s hard drive, it’s much easier for the government to respond to even the most far-reaching of requests. This is very much for the good of democracy, of course – but, as in the Drudge-linked example above, it’s also much easier for those trying to rake muck. With access to a wide range of communication, it’s easy to succumb to confirmation bias. (Lawrence Lessig wrote an excellent essay on the dangers of too much openness last year that is worth revisiting.)

The moral of the story is this: as much as we hold the Administration to account for overreacting in Shirley Sherrod’s case, we should exercise the same restraint when the next email scandal breaks. I say this in part from self-interest, of course, but the point remains. Our relationship with email is still evolving, and we live in a moment in which it can easily be misunderstood. We owe it to ourselves to take isolated emails out of context with a grain of salt – no matter the source, no matter the topic.

We’ll only see more revelations like those of recent months. It is up to all of us to assure that we understand why we’re seeing them.

Or to get everyone to give a sworn statement about it. I can go either way.

Almost immediately after the story broke, someone produced a picture of Woods and his wife Elin standing side by side American-gothic style, with Woods sporting a photoshopped black eye and broken tooth. Next came the insta-computer game, a little bit of flash animation where the player gets to control Tiger Woods in his Escalade as he runs away from his golf club-wielding wife. And of course there are the jokes, the thousands of one-liners dumped onto comment boards from one end of the internet to the next. All, of course, were widely circulated and linked on Twitter, Facebook, and countless blogs.

By the current standards of cultural commentary, this is completely unremarkable. Whenever there is breaking news of any sort, it is now standard procedure for the internet to take control of the story. Tabloid-level scandal provides the most fruitful ground (e.g. Michael Jackson’s death, Christian Bale’s famous on-set rant, David Hasselhof’s drinking), but there is hardly anything that is off-limits, from accidents and natural disasters to celebrities and political figures.

What is remarkable though is just how fantastic this all would have seemed in 1999. Sure, ten years ago we had the Internet, but we were still treating it as little more than a more efficient distribution platform for the existing media. Our essentially “broadcast” approach, with the privileged few sending their rare and valuable content out the to the many, was still firmly in place. So much so in fact that when Conrad Black launched the National Post in 1998, complete with fancy new website, the major objections were not that the business model of newspapers was obsolescent, but just that there were just too many dailies in Toronto already.

What changed everything was the development of what has been called “Web 2.0″, the collection of web-based applications that foster interactivity, modular interoperability and collaboration. These include social networking sites, wikis, aggregators, and blogs, along with dozens of other applications that allow people to share and revise content at will.

This is what the law professor and copyright reform activist Lawrence Lessig has called a shift from a “Read Only” (R/O) to a “Read/Write” (R/W) culture. A R/O culture is characterized by a sharp distinction between producers and consumers and is based on the lecture model of distribution. In contrast, in a R/W culture the distinction between producers and consumers breaks down, and the culture becomes more like a freewheeling dinner party than a lecture. Crucial to a R/W culture is open access to information that everyone has the ability to not only share, but also manipulate and transform. This is what underwrites the open-source, multiple-drafts, reuse/remix/recycle media ecosystem we might as well call Culture 2.0.

But as Lessig has pointed out, this isn’t so much a new development as a return to a culture that dominated right to the end of the 19th century. Until the arrival of mass media like radio, television, film, and phonographs, American culture was a mongrelized mess of folk-traditions driven by free-form borrowing, appropriation, and outright copying. And so when we look back over the last century and a bit, the heyday of R/O culture from the 1920s to the 1990s starts to look like a aberration, made possible by distinct but temporary level of analog technological development. The Culture 2.0 digital revolution is taking us back to a more democratic culture built around creative communities of sharing and collaboration.

This revolution has had at least three profound effects:

(1) First, it catalyzed the Copyright Wars, the decade-long fight over intellectual property that has raged between software developers, record labels, and publishers on the one side, and programmers, artists, and file sharers on the other.

(2) Second, it completely destroyed the business models of old media, in particular newspapers and broadcast television.

(3) Finally, it has pretty much put the old information gatekeepers out of a job – the producers, editors and journalists whose job descriptions involved managing and constraining the flow of information to the masses. The result is very much like Marx’s famous description of life under capitalism: “All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses, his real conditions of life.”

Of course in any revolution, the old order never goes down without a fight. Big Copyright continues to manipulate governments into passing draconian intellectual property regimes that suppress the rights of users, while News Corp boss Rupert Murdoch (owner of Fox News and the Wall Street Journal, along with other large properties) has declared war on Google, blaming it for profiting off his products while delivering nothing but empty page views in return.

These are little more than the rearguard actions of a doomed ancien regime. The culture has changed from one marked by information scarcity to one of plenitude, and there is no longer value to be had in gatekeeping or rationing. We live now in an attention economy, and the result has been a transfer of power to the masses, who will shop their eyeballs and scarce time to the most interesting bidder.

While our culture is now “democratic” in the most literal sense of the word, the unanswered question is the effect this will have on the actual institutions of democracy. Many people are worried that civil discourse will suffer as we retreat into the echo-chambers of the blogosphere, while others are convinced that the demise of print media will lead to unfettered corruption at City Hall and on Capitol Hill.

These are not idle worries. If the rise of Culture 2.0 was the most important development of the first decade of this century, making sure we use it to build a properly functioning Democracy 2.0 will be the most pressing task of the second.

Andrew Potter is a columnist for Maclean’s Magazine. He is also the author of The Authenticity Hoax: How We Get Lost Finding Ourselves, forthcoming in April from HarperCollins.

Last week, The New Republic posted a provocative essay by open-information guru Lawrence Lessig, making a case to which he would seem to be antithetical: that we must temper our headlong rush into universal government transparency.

(I’ll provide here a summary of his argument, though I’d recommend either reading the full 11-page document, or, at least, this short-hand summary of it, which I found through the always-fascinating Jay Rosen.)

Lessig differentiates two types of government information that transparency advocates seek to have made available. The first is what I’ll call legislative and raw data; the other, indicators of influence.

Legislative and raw data is material such as the content of bills and actual numbers generated by government activity (such as you might find at Data.gov). There is some objectivity to this information – one can certainly form an opinion about legislation, but, unless you’re Betsy McCaughey, the substance of them is fairly objective.

“Information, poorly processed, can lead to damning accusations, and it’s easy for those accusations to stick.”

(A brief aside: in order to bring transparency and combat the pervasive assumption that elected officials have no idea what they’re voting on, President Obama has suggested a waiting period between the introduction of a bill and its floor vote. Republicans, who’ve been hammering on this issue, think a longer period is needed, though they certainly had plenty of opportunities to put such a policy into law over the past several years. As for why they didn’t: “It was a different time,” according to John Boehner.)

The other type of data which open government advocates seek is that which deals with contributions to elected officials, what I above referred to as indicators of influence. Who gave how much to who, and how those officials then voted. This data is Lessig’s primary concern – that the necessary interpretation of what those contributions mean can potentially damage the work of elected officials.

Here’s his point: the interpretation of what money elected officials have received is subjective. What timeframe of giving is indicative of undue influence? How much? How much in comparison to what they’ve received from those of an opposing viewpoint? Each of these questions (and many more) can be answered in different ways depending on the point one wants to make. A strong comparison that Lessig draws is to the first-blush assessment of surveillance camera footage. An observer can quickly draw an erroneous conclusion from what he sees on a camera feed, outside of the full context of the scene.

But perhaps a better example is the attempt to regulate the financial industry. While there is general agreement that the lack of regulation on securities led to last September’s economic crisis, it is difficult to determine what level of regulation would be both sufficient and loophole-free, if any. (Coincidentally, when Louis Brandeis suggested the mantra of open government advocates, that “sunlight is said to be the best of disinfectants,” he was seeking additional regulation on financiers.)

Lessig’s concern is that, given the limited attention citizens are willing to pay to complex issues, a misinterpretation of a contribution will be halfway around the world while the actual situation is donning its boots. As he says:

To understand something–an essay, an argument, a proof of innocence– requires a certain amount of attention. But on many issues, the average, or even rational, amount of attention given to understand many of these correlations, and their defamatory implications, is almost always less than the amount of time required. The result is a systemic misunderstanding–at least if the story is reported in a context, or in a manner, that does not neutralize such misunderstanding.

Further, the lack of interest by the media in giving as much play to corrections as they do to initial reporting means that citizens often won’t have a chance to hear the truth at all.

Lessig raises a very good point. In addition to the years of my life I’ve dedicated to establishing geek cred, I’ve spent years working politics in California and New York. I can say, from experience, that information about contributions is regularly used to make a political point, both from honest and deceptive purveyors.

For example, I worked this last summer on a political campaign here in New York City. Over the course of the campaign, the candidate, recognizing the significant problem of city officials giving kickbacks to supporters, spoke out publicly against the practice. This resulted in more attention being paid to his behavior – and a completely misleading piece in a local tabloid. It was easy, given the availability of information, to portray innocuous behavior as being illegitimate – therefore allowing a piece about the candidate’s “hypocrisy” to be printed. This is the crux of the problem: that information, poorly processed, can lead to damning accusations, and that it’s easy for those accusations to stick. Whether it is intentional or not, that it can happen is a significant problem. (In the case I just cited, the paper went on to endorse the candidate.)

I’ve also found, over my career, that contributions are far less an indicator of how an elected official will vote than are the politician’s friendships. That these relationships are unquantifiable poses a significant challenge to ever fully understanding why decisions are made – and ultimately means that Lessig’s proposal to bring appropriate sunshine is doomed.

That proposal offers a somewhat tangential solution to the problem. Lessig suggests the passage of campaign finance reform, which would limit the influence of outside money. His point, as I understand it, is less that this would restrict how money comes in, but would decrease the likelihood that an overwhelming contribution from one source would influence action. He proposes the passage of the Fair Elections Now Act (FENA), though he admits the name is misleading.

There are two problems with this idea. The first, mentioned above, is that it won’t actually capture information about relationships, a prime driver of influence in decision-making. But, second, it also masks where money comes from for all but the most savvy. In San Jose, California, where I once worked in politics, such a law is in place, capping how much money can be given by any individual or group. What this means, though, is that organizations, like the Chamber of Commerce, spend enormous energy building fundraising trees – garnering maxed-out contributions from employers, employees and their spouses as deep into member organizations as they can go. To the casual observer, it looks like the Chamber of Commerce has given only once. To those in the know, it’s obvious both how much money has been given, but also, how much time.

Reform, and transparency, are needed. But Lessig is right: simple solutions don’t exist, and currently enacted solutions must be understood to be flawed. What he doesn’t say is the hardest truth of all – that the ultimate success of our democracy depends on an engaged, educated electorate.

No wonder solutions are so hard to find.

Philip Bump is a technology and communications consultant in New York City who will be writing an occasional column for Mediaite about the intersection of history and the Internet called “The Wayback Machine.” Follow him on Twitter here.

Even his biggest fans probably wouldn’t argue that Keith Olbermann is a transcendently non-partisan journalist. Like his right-wing counterparts on Fox News, Olbermann has carved out a niche for himself as a righteously indignant voice from the left, and he’s upfront about that.

Earlier we asked if Olbermann was crossing the line by appearing in a political ad, and it turns out that he did not give permission and MSNBC is asking Change Congress to stop using it in their ad.

UPDATE An MSNBC spokesperson tells us that no permission was granted given for the use of Countdown in this clip and they are asking to take it out of their clip.

The ad in question comes from Change Congress, an anti-special interest advocacy group headed up by cyberlaw expert and distinguished legal scholar Lawrence Lessig. It takes Representative Mike Ross (D-AR) to task for accepting OVER 9000 over $921,000 in campaign funds from the healthcare lobby and for opposing the public option, despite the fact that the majority of his constituents support it. Aside from a few short clips of Ross and a voiceover from Lessig, the bulk of the ad is a segment from Countdown in which Olbermann criticizes Ross’s record point-by-point. Here’s the ad:

As political ads go, Olbermann wound up in a relatively safe one. Though it unequivocally supports the public option — using Olbermann’s words — this ostensibly isn’t an ad in favor of public healthcare. Rather, it’s about corporate interests’ ability to sway politicians away from voting in accord with the will of their district. Coming out against corporate interests is a little like supporting babies and sunshine; though it can be used to more pointed ends, in itself it is a politically bulletproof stance to take.

Still, there’s something a little odd about seeing a journalist in a political ad, period. It’s not clear if Olbermann explicitly volunteered to be in the ad, but he’s in it for a long time, and Lessig’s email to members of Change Congress touts Olbermann’s presence; he almost certainly could put the kibosh on it if he wanted. In an interview with Bill Moyers, he said that what he does “is really journalism,” and that he’s not biased because “I think the stuff that I’m talking about is so obvious and will be viewed in such terms of certainty by history.” And as he told the ladies of The View, he himself doesn’t vote in elections on the grounds that he’s showing his objectivity as a journalist. But when you appear in an ad that takes shots at a representative, however high-minded those shots are, you’re entering the mucky fray of politics in a way that prevents you from convincingly covering them as an outsider.

Olbermann’s 1997 ad for $4 turkey melt BLT combos for Boston Market is, of course, A-OK.

via BoingBoing