Posts about legal

Twit no more

See Tim Toulmin, head of the U.K. Press Complaints Commission, responding to the dustup created when he was misquoted as wanting to regulate bloggers. I was among those stirring dust but I corrected that when Toulmin properly complained. Says Toulmin:

Last week I read on one of the political websites about some twit who had said that a voluntary code of practice for blogs was needed. How absurd, I thought. Bloggers are hardly a homogenous profession; they operate in a naturally self-regulatory environment where inaccuracies can quickly be corrected by other posters; they have (sometimes) transnational followings, yet different countries have different cultural standards; it would be a bureaucratic nightmare to enforce; there is no proven need for one and so on.

But then – horrors! – I saw that this viewpoint was ascribed to me, with some predictably unflattering remarks. The American blogger Jeff Jarvis took to MediaGuardian’s weekly podcast to fulminate against my stupidity. Thousands of bloggers globally rounded on the suggestion, deploying all manner of exotic language.

I’m thinking about writing my Guardian column this week about the means and rights of response and correction in the internet: what’s working and what’s not. Also: Whether libel laws are outmoded when there is a new means of response (credit: Susan Crawford). And what happens when courts — nevermind regulators — attempt to define and treat blogging as media and thus threaten to put a chill on simple conversation? But on the other hand, if we bristle at subjecting blogs to the restrictions of media then can we still claim press protections for bloggers’ acts of journalism? And are codes of conduct worth the pixels they’re written in? Your thoughts?

Lowest common legal denominator

The New York Times tried to block UK readers from its detailed story about evidence in the London airplane bomb plot so as not to run afoul of British laws restricting such pretrial coverage. But The Guardian reports that it wasn’t — it couldn’t be — 100 percent effective for both technical and human reasons (i.e., bloggers copying the story for all to see). In this case, I assume, The Times’ motive was to not interfere with the prosecution of the case — not to get the terrorists off. But with the UK’s stricter libel laws, one could also imagine publications trying to play safe and restricting access to stories so as not to get sued. That, too, won’t work reliably. So all this raises a disturbing prospect: Will we find ourselves in a position where we need to publish to the lowest common legal denominator? Could China’s rules become our rules? And what will it take to protect us from that?

Google this, Google

Google’s lawyers are trying to crackdown on people using Google as a verb. Yes, that’s what lawyers do. But what makes it especially absurd is that every new internet company dreams of becoming a verb.

A blogger behind bars

Comment is Free asked me to write a post on the blogger just jailed in California. It’s written with a UK audience in mind, thus the extra background:

The New York Times reports today what may be the first case of a blogger jailed by a US federal court for not handing over sources or source materials for a story – a case that will raise no end of questions about the rights, responsibilities, and protections of citizens acting as journalists.

Josh Wolf, a 24-year-old blogger and freelancer, had shot video of a San Francisco protest over the 2005 meeting of the G8 in Scotland. Violence ensued, a police officer’s skull was fractured, and authorities say a smoke bomb or firework was put under a police car. Wolf sold some of his video to local TV stations and put more up on his blog. Prosecutors demanded that Wolf testify before a grand jury and hand over everything he shot. Wolf refused and, yesterday, a federal judge found him in contempt and sent him to prison, where he could stay until the grand jury’s term expires next summer. Soon after, a post appeared on his blog asking for donations, thoughts, and prayers under the headline, “Josh is in jail and this is his mom”.

Wolf had argued that as a journalist he has a right to protect his sources. But the federal government recognizes no such right and efforts to pass a shield law in Congress have so far failed. That is how then-New York Times reporter Judith Miller landed in prison for not revealing her sources in the White House leak of a CIA officer’s name. And just yesterday, a federal appeals court ruled that the government could obtain phone records from Miller and a colleague in a separate case involving two Islamic charities the government says were tipped off to raids against them.

California does have a shield law that provides such protections to journalists – though debate is starting about who is a journalist. This was a crucial point in a recent case Apple opened against bloggers who’d scooped the company’s plans. The company dropped its complaint after an appeals judge ruled that bloggers do not “differ from a reporter or editor for a traditional business-oriented periodical”. The court said: “We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalism.’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here.”

Bloggers cheered.

But all these raises no end of Gordian questions:

• Should journalists have the right to protect their sources? Journalists accept as holy writ that we should. How else can we function watchdogging the governing and the powerful? How will whistleblowers and sources ever feel confident to come forward and share what they know?

• But if the internet allows anyone to publish, then who should get such protection? In Congress and the courts, arguments are ensuing over whether bloggers are journalists. I say that’s the wrong argument. Journalism isn’t defined by who makes it (and, in fact, trying to do that is a dangerous attempt to certify journalists, giving authorities the means to decertify them). Journalism is an act. I say that if one journalist’s act of reporting is covered, then all must be. And the journalists are not necessarily opposed. At a symposium on this topic, New York Times Executive Editor Bill Keller said: “The NY Times should be exceedingly humble about trying to decide who and who is not a journalist since we meet the test … and it feels like pulling up the ladder behind us.” Still, he wasn’t sure which bloggers should qualify.

• But what is to stop any witness to a crime from blogging and claiming to be a journalist, cutting off prosecutors from evidence needed to try criminals? Yes, what would stop Tony Soprano from blogging to claim the shield: ‘I’m what you call a citizen journalist. You godda problem wid dat?’

• And what are the responsibilities of journalists as citizens to report crime and aid the prosecution? I was in the habit of calling bloggers “citizen journalists” (I’ve since updated my blogictionary and now call this networked journalism because, as I said above, it’s dangerous to define journalism by who does it). Oftentimes, when I used the phrase “citizen journalist,” professional journalists would complain to me, “Well, we’re citizens, too!” Indeed, we are. So what is our responsibility to society in criminal matters? Some say Judith Miller witnessed a high crime in the White House and should have reported it to prosectuors. Others might say that if Wolf has evidence of a cop getting bashed and refuses to hand it over, he is doing nothing less than aiding and abetting the crime.

• But then on the other, other hand, if all journalists and all citizens who may witness news and thus perform acts of journalism now fear subpoena, contempt, and prison, what chill will this put on news reporting? The price of knowing becomes high. So in this case, instead of Tony Soprano becoming a blogger, we call become Tony Sopranos: hearing, seeing, and speaking no evil.

• Some argue that a line should be drawn at criminal activity, that a reporter should be shielded except in cases where a crime was committed. But that, too, falls apart. If, for example, the White House committed a crime in its National Security Agency phone snooping, would that then make a reporter’s sources vulnerable to exposure or the reporter still vulnerable to imprisonment?

Blogging was a helluva lot easier when all we wrote about was our cats.

Whistleblowing in the dark

I think the Supreme Court’s ruling today against government whistleblowers — deciding that they have no First Amendment protection for their complaints if those complaints are part of their jobs — will result in more anonymous leaks of information not through the press but through the many means of anonymity that the internet provides. That is, Deep Throat would blog.

Jack Balkin and Marty Lederman each explain this decision well at Balkinization. Says Lederman:

Today, the Court took that very signifiant step, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of “public concern” — a very significant doctrinal development.

So you won’t see people blowing the whistle through the press because the government may well take reporters to court and jail and find out their identity. As Jack explains, you won’t see them going through channels because that loses them their First Amendment protection. You won’t see them compaining publicly because they’ll lose their jobs.

Who loses? We the people, on two counts: Our government is less accountable and our First Amendment has a new boundary.