Category Archives: Media Law

Senators: don’t use shield law to stab bloggers

Shield law divides journalists, bloggers? by Douglas Millison

The Justice Department is lobbying the U.S. Senate to amend a proposed reporters shield law to exclude bloggers from the limited protections that it would give paid reporters against the forced disclosure of confidential sources. The House passed a national shield law last fall in reaction to the recent spate of subpoenas issued by federal prosecutors to reporters like Judith Miller. That bill (search for H.R. 2102 EH) treated bloggers and paid media the same. The Senate version (search for S. 2035) uses different words to accomplish the same goal of treating citizen journalists just like the professional journalists (see graphic below).

But a dozen letters from Cabinet-level officials, posted on a Justice Department web site, argue that the shield law would aid terrorism because it “provides a broadly defined class of ‘covered persons’ with extraordinary legal protections against having to reveal confidential sources.” That last quote is from a March 31 letter from Defense Secretary Robert Gates. The other letters make the same point — the definition of covered persons is so broad as to harm national security.

Bloggers should be furious. And Senators should ignore this latest illogic from a Justice Department still tainted by the disingenuous Alberto Gonzales.

In principle journalism has never been a privileged profession but rather a form of free speech, which is every American’s right to practice under the First Amendment. To create an artificial privilege for paid practitioners would never have made any moral or legal sense — even less so now that technology is erasing the distinction between the citizen and paid journalist.

In practice, a senior White House official, Lewis Scooter Libby, has been convicted of perjury and obstruction for his role in attempting to silence Joseph Wilson when he questioned the falsehoods that formed the U.S. rationale for the invasion of Iraq. Libby sought to undermine Wilson by blowing the CIA cover of his wife, Valerie Plame. Now this untrustworthy administration wants the legal authority to discriminate between paid journalists — who were so accepting of their leaked lies — and unpaid bloggers who might get truthful tips from honest whistle-blowers. If the Senate and House cave in to White House pressure, they will create a double-barreled tool for manipulating public opinion — leak lies to mainstream media and prosecute any blogger who gets a truthful tip to the contrary.

This is a weak law in that it creates dozens of reasons to force “covered persons” to reveal sources, including what I call the Steve Jobs clause that would force a “covered person” to reveal a source who leaked a trade secret. Jobs tried to use the California courts to divine who had leaked info about a new Apple product to some bloggers, but the state’s shield law, which defines bloggers as journalists, got in his way. So if the federal law passes, any corporate official looking to hide anything behind a trade secret has a brand new ally in the U.S. Justice Department.

The arguments around the federal shield law are complex. The First Amendment Center offers a lengthy article on the history of this debate. Many people think weak federal protection is better than none at all. Fine, so long as every American who practices journalism plays by the same rules. Long ago the Founders wrote that “Congress shall make no law” limiting the First Amendment. No law means no differentiation between journalists on the basis of whether they are volunteers or get paid.

Text of House and Senate bills as regards “covered persons”

FOIAgeddaboudit! Presumed openness still gone

The U.S. Freedom of Information Act (FOIA) has been on the books since 1966 to establish the public’s right to get government documents. In that time its powers have repeatedly waxed and waned. On New Year’s Eve, President Bush signed a law that amended FOIA.  An unbylined Associated Press article that ran in USA Today said:

“The new law toughens the Freedom of Information Act . . . It amounts to a congressional pushback against the Bush administration’s movement to greater secrecy since the terrorist attacks of 2001. . . . The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.” (emphasis added)

Writing in Secrecy News, a blog published by the Federation of American Scientists, Steven Aftergood said the part about reversing the Ashcroft order is wrong. The original House version of the bill would have repealed the Ashcroft policy and established a “presumption of openness” but that provision was removed prior to passage. To proves his case Aftergood quotes from the Congressional Record: 

“Rep. Henry Waxman (D-CA) noted with regret . . .  that the final legislation ‘does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret. . . . (while) from an opposing perspective, Rep. Tom Davis (R-VA) expressed his approval that ‘the provision repealing the so-called Ashcroft memorandum was eliminated.” (Both quotes are from the same Congressional Record entry; use “find” to locate them.)

On January 4 the Associated Press issued a clarification that said in part:

“The story should have specified that the bill does not explicitly reverse Ashcroft’s order in the wake of 9/11. However, sponsors say the legislation’s intent is to require agencies to provide stronger justification when withholding information under the Freedom of Information Act . . . Under the new law, agencies now must specify national security, law enforcement or privacy exemptions in denying information, but they don’t have to provide a finding that those interests would be harmed by disclosure.”

The original AP story on the signing of the bill said that “Dozens of media outlets, including The Associated Press, supported the legislation.”

Did these supporters read the legislation? I ask because media organizations have also supported the so-called reporter’s shield law and I wonder why. It does not contain the word shield. How can there be a shield bill without a shield? See for yourself. Use the Library of Congress to search for the following title: “The Free Flow of Information Act of 2007.” I not only read the text, I copied it into a word processor and searched for “shield.” It’s not there.

The FOIA clarification and the unshield law both touch on professional concerns of journalists. If we can’t get it right about issues that directly affect our own profession, what does that say to the public about the overall quality of our work?

Extra, extra! Weekly suit makes the big time!

Last week I excerpted an Editor & Publisher column that chided mainstream media for ignoring the lawsuit brought by the independent weekly, the San Francisco Bay Guardian. In 2004 the Guardian charged that the rival San Francisco Weekly had used deep-pocket support from its corporate parent, Village Voice Media, to lower advertising prices in an alleged effort by the chain weekly to drive the indie weekly out of business. Under California law such behavior, if proven, would be called “predatory pricing” as the San Francisco Chronicle reported Saturday after the case went to the jury last week. Here’s are two opposing snippets from the Chronicle article:

“Cash infusions from the parent company allowed the Weekly to drop ad prices from $18 a column inch to between $10 and $15 an inch, said Guardian attorney Ralph Alldredge . . . Weekly attorney H. Sinclair Kerr Jr. said the Guardian is tanking not because the Weekly is stealing its ad contracts but because things are bad for newspapers everywhere, big and small.”

I am a Chronicle staff writer.

‘Predatory pricing’ verdict looms for SF Bay Guardian

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Editor & Publisher columnist Mark Fitzgerald writes that:

Bay Area mainstream media are studiously ignoring the courtroom action in the San Francisco Bay Guardian’s “predatory pricing” lawsuit against Village Voice Media (VVM) . . .  the Bay Guardian is suing SF Weekly and VVM under a California law adopted in a more populist era that makes it illegal to price product below cost in order to harm a competitor . . . the case could go to the jury as early as Wednesday.”

* * *

(Postscript: This story ran after I posted the E&P column.)


Why Steve Jobs loves the proposed federal “shield”

We haven’t heard much of late about the so-called federal shield law. Maybe that’s because reporters have finally read the bill and realized that its main beneficiary would be Steve Jobs of Apple.

In December 2004, Apple sued two web sites that had published details of some hush-hush Apple products. The information was a trade secret, like the formula for Coke, said Apple, which also wanted to know who had leaked the info. But state courts said no because California had a shield law that protected the web sites from divulging their sources. (See case summary in Wikipedia.)

But had the proposed federal shield law been on the books, the outcome would have been different. This proposal, called — The Free Flow of Information Act of 2007, authorizes the jailing of any reporter who refuses to say who disclosed a trade secret. In fact, the law never uses the word “shield.” Instead it details the various circumstances under which reporters can be jailed. Congress has a truth in labeling requirement for legislation. The first sentence of every bill explain its intent. The first line from the HR 2102, which passed the House by a 398-21 margin last October, say the act is designed:

“To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”

So the bill’s stated purpose is to keep information flowing freely by insuring that reporters can be deprived of their freedom if they don’t reveal their sources in cases involving national security or terrorist attacks. The trade secrets provision in the House bill says once the party with the secret (i.e. Steve Jobs) ”has exhausted all reasonable alternative sources” ( pretty please with a cherry on top failed) a federal judge can send editors to jail unless they “identify a person who has disclosed a trade secret.”

The trade secret provision will cripple investigations of corporate activity. For instance, consider what happened in 2006 when the Electronic Frontier Foundation filed a federal lawsuit charging that ”AT&T Corp. has opened its key telecommunications facilities and databases to direct access by the NSA and/or other governmental agencies, intercepting telephone service since at least June 2004.”

As part of its reponse AT&T wrote EFF a letter asking about its posession of documents that “relate to the technical structure of AT&T telephone networks and are extremely sensitive in nature . . . Were they or any one of them to fall into the wrong hands they could be used to ‘hack’ into the AT&T network.”

Had the Free Flow law been on the books, would there have been a story about illegal surveillance? Only AT&T knows how its network runs. Reporters would have to use AT&T ”technical” documents or persuade AT&T officials to leak “extremely sensitive” information. Would reporters peeking into AT&T’s network find themselves telling a federal judge where they got secret information of such sensitivity?

In 1977 Mark Dowie published Pinto Madness in Mother Jones Magazine. The article said Ford Motor Company had known that the design of the gas tank on its Pinto made the car susceptible to explosion in rear end collisions, that the company had a safer design and yet it sold the car anyway because of competitive pressures. At one point Dowie wrote:

“Internal company documents in our possession show that Ford has crash-tested the Pinto at a top-secret site more than 40 times and that every test made at over 25 mph without special structural alteration of the car has resulted in a ruptured fuel tank. Despite this, Ford officials denied under oath having crash-tested the Pinto.”

The Free Flow of Information Act will not shield reporters. It will stab them in the backs.

Personal blog precipitates firing of CNN producer

tn_chez.jpg Chez Pazienza

The New York Times reports that CNN fired senior producer Chez Pazienza after he was told that he had violated a company policy by failing to get permission to do outside writing. Pazienza maintains a personal blog, DeusExMalcontent, and has apparently also contributed to the Huffington Post. CNN told the Times: ““CNN has a policy that says employees must first get permission to write for a non-CNN outlet.”

Panzienza, 38, is married. He and his wife are expecting a child in August. He told the Times he was not going to seek his job back and had not decided whether to hire a lawyer or what to do about the dismissal.

In a Feb. 18 post titled “Requium for a news career” Panzienza tells about how, at age 19, he used a live radio show at the University of Miami to read aloud the minutes of a meeting where his then-supervisors were trying to deal with ”The Chez Situation.” He goes on to write:

“When I got into television, I did my best to bury my inner-revolutionary . . . Over the past several years though, something has changed. Drastically. And I’m not sure whether it’s me, or television news, or both . . .  the profession I once loved and felt honored to be a part of has lost its way.”

He goes on to describe how his whole attitude changed after he underwent an operation to remove a brain tumor and had time to start the blog and explore his own suppressed feelings. The Requium posting goes on to talk in detail about the firing conversation so do read it if you want those details but I was more interested in the ending, where Panzienza writes:

“All it takes is one person to stand up and say ‘fuck this.’ I truly hope so, because I’m finally doing just that. And I should’ve done it a long time ago.”

I hope he and his young family are ready to reinvent themselves. Meanwhile the Times included this parenthetical comment at the end of its article about his firing:

“(For those who wonder, The New York Times’s policy on ethics in journalism does have a section on blogs. While it states that blogs “present imaginative opportunities for personal expression and exciting new journalism,” it adds that blogs “also require cautions, magnified by the Web’s unlimited reach.” It elaborates that personal blog content should be “purely that: personal,” and that staff members should avoid blogging about topics they cover as journalists and avoid taking stands on divisive public issues, among other guidelines.)”

The ghost of Captain Jack Sparrow haunts CES

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Mashup is a Caribbean word, mateys

As the crowned heads of cyberspace met at the Consumer Electronics Show, the spectre of  content piracy,  aided and abetted by peer-to-peer (P2P) networking, cast a shadow of fear over the event.

“The volume of P2P which is dominated by illegal, uncopyrighted material is overwhelming and that clearly should not be an acceptable continuing status,” the general counsel of NBC Universal is quoted as saying in The Hollywood Reporter.

Reporter David Kaplan of the e-zine Paid Content touched on this same issue in a brief but informative report that contains many useful links to other sources in the battle that is brewing between mashup culture and corporate content.

In searching around this morning I also found an earlier article in the e-zine Ars Technica, reporting on a speech by the chief executive of NBC Universal. The title says it all: “Piracy is the new face of economic crime, and we’re losing.”

I recently wrote about a study by Nokia that suggested that, within a few year’s time, that a quarter of all entertainment “will have been created, edited and shared within their peer circle rather than coming out of traditional media groups.”

Aarrgh! Don’t you just hate it when industries go to war with their customers!