The Power to See Your Vest
From AP/Yahoo!:
Online journalists who published secrets about Apple Computer Inc. filed an appeal Tuesday in a case that could have broad implications for the media.
A California judge ruled March 11 that three independent online reporters may have to provide the identities of their confidential sources and that they weren't protected by "shield laws" that usually protect journalists.
In December, Apple sued 25 unnamed individuals, called "Does" and believed to be Apple employees, who leaked specifications about a product code-named "Asteroid" to Monish Bhatia, Jason O'Grady and another person who writes under the pseudonym Kasper Jade. Their articles appeared in the online publications Apple Insider and PowerPage....
Cupertino-based company...attorneys demanded that the reporters identify their sources....
Santa Clara County Superior Court Judge James Kleinberg ruled in Apple's favor earlier this month, saying that reporters who published "stolen property" weren't entitled to protections.
On Tuesday, attorneys representing the journalists filed an appeal, as expected. They argued that the judge's ruling violated the First Amendment and that Apple should first subpoena its own employees or use sophisticated computer forensics to determine the sources of the leak before subpoenaing the journalists....
From Unpacking My Library:
Over the past month, in two courthouses on opposite coasts, the first shots were fired in what is likely to be a long and dramatic “battle over blogging.” In the U.S. District Court for Southern New York, City lawyers were demanding that the New York City Independent Media Center, (NYC IMC) turn over publicly available documents relating to an animal rights march in 2002. And in California, Apple Computer had decided to subpoena three bloggers over their publication of trade secrets obtained from anonymous sources. The two cases ended differently, and both rulings ultimately skirted the fundamental question of whether traditional journalistic privileges were available to grassroots journalists in an era of online media. Nevertheless, it seems obvious that while bloggers and more mainstream journalists might be reaching an uneasy truce, the legal and political worlds are just starting to grapple with fundamental questions brought about by the onset of the digital era....
In [the first case], the City demanded voluminous information, including all of the NYC IMC’s news reporting, emails, and web pages relating to the 2002 World Economic Forum....A US District Court judge agreed with NYC IMC that the material was of marginal relevance and also that the material was publicly available and thus obtainable by the City. Nevertheless, the judge did not directly address the question of reporters privilege, although he did not he dismiss the argument outright.
A second case in California that garnered wide publicity from the blogging community resulted in an equally murky outcome. According to LawBlog.com, “[California Judge] Kleinberg ruled in the Apple Computer, Inc. case that Monish Bhatia, Jason O'Grady and a third blogger with the pseudonym Kasper Jade were not protected by the First Amendment when they published trade secrets obtained from third parties about an unreleased Apple product code-named ‘Asteroid.’”
Based on the text of the judge’s ruling, UCLA Law Professor Eric Volokh concluded that the judge avoided the blogging question completely. “The judge did not deal with any possible subpoenas against the bloggers,” Volokh wrote. “He thus didn't decide whether bloggers are entitled to be treated the same as other journalists.”...
Does a reporter have the legal right not to disclose his or her anonymous sources to a federal grand jury? Although many Americans, and even some journalists, might answer “yes,” the constitutional basis for the privileging of journalistic sources rests more on custom than on legal precedent....
Over the past two years, a number of journalists have been fined and imprisoned over their refusal to reveal their anonymous sources, the most well known of whom, Judith Miller of the New York Times and Matthew Cooper of Time magazine, now face up to eighteen months in jail for their refusal to divulge who leaked the identity of CIA agent Valerie Plame....
In the March / April 2005 issue of Columbia Journalism Review, Douglas McCollam reports that, during Miller and Cooper’s appeal of their sentence before the Circuit Court of Appeals, presiding judges seemed to struggle with the question of who would qualify for a reporter’s privilege. “If an Internet blogger was illegally leaked nuclear secrets and posted it on her Web site, would she be entitled to refuse to testify about her source? the judges wondered. Floyd Abrams [Cooper and Millers lawyer] soft-shoed a bit before conceding that, under the privilege he was seeking, she would.” McCollam wryly notes that, upon hearing Abrams’ answer, “a collective flinch rippled through the establishment media in the gallery.”
Fearful that the courts will conclusively strip away their constitutional protections, many media organizations have concluded that a Federal “shield law” represents their best defense against governmental harassment....Shield laws may not offer much protection for grassroots journalists, however.. As Jacob Weisberg of Slate puts it, “there's a big problem with journalist shield laws, which advocates have yet to answer. How do you decide who is a journalist? If you create a privilege that applies to a group, someone has to decide who belongs and who doesn't.”
New York State...has conclusively decided who gets protection from its Shield Law: professional journalists, and professional journalists only. A professional journalist, accord to the New York law, “shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news … such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.”...
In mid-March, the online technology journal CNet published an interview with Republican FEC commissioner Bradley Smith under the headline “The Coming Crackdown on Blogging.” In it, Smith warned that the McCain-Feingold Campaign Finance law could soon force the FEC to start to regulate political activity on the internet. “In just a few months,” wrote CNet, “bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.”
After days of on- and offline turmoil, Democratic FEC commissioner Ellen Weintraub took to the pages of CNet to tell bloggers to “chill out already.” “Reports of a Federal Election Commission plot to ‘crack down’ on blogging and e-mail are wildly exaggerated.” The very next day Senators McCain and Feingold issued a statement that noted, in part, that “the latest misinformation from the antireform crowd is the suggestion that our bill will require regulation of blogs and other Internet communications. This issue has nothing to with private citizens communicating on the Internet.”...
This reminds me of the Online Coalition thingie. Its blog links to a transcript of a speech by FEC Chairman Scott Thomas. Excerpts:
And for bloggers: Most won’t qualify as a political committee that must have a website disclaimer. And even those that display express advocacy or solicitation messages can escape disclaimer rules by working with a listserv where the recipients have indicated that they want to be on such lists....
So, now that the ball is back in the FEC’s court, what is it likely to do in this rulemaking? Well, there surely will be some consideration of regulating paid party corporate and union political advertising using the internet....On the other extreme, I doubt there will be any interest in treating what individuals do on their home computers as a coordinated communication. There is a very clear statutory exception for home volunteer activity, and the FEC has applied that consistently for several years now....
Right now, there is no clear exception from the independent expenditure reporting rules for persons engaging in independent express advocacy activity. They technically have to report independent expenditures if the cost exceeds $250 bucks....
Now, as for bloggers: there are some “cute” questions, I would call them. Those who just work with home computers to post text, or add links will remain free from coordinated communication rules, I predict. But I have seen the stories about campaigns paying bloggers to run banner ads. Those payments probably are already being reported by the campaigns, and the bloggers probably can successfully argue that they’re just acting as small-scale commercial vendors with no FICA obligations. I’ve seen stories about campaigns simply paying bloggers to run favorable postings....
Seriously, that starts to drift between the blogger serving as a commercial vendor, and the blogger, on the other hand, becoming a [emphasis] political committee that must register and report its receipts and disbursements for federal election activity. That sounds pretty scary, I know, but the definition of political committee is:
“...a group that raises more than $1000 dollars in contributions for the purpose of influencing federal elections...or that spends more than $1,000 dollars in expenditures for the purpose of influencing a federal election.”
It’s a pretty broad definition. Now, mercifully the Supreme Court has uh, said that a group’s “major purpose” must be influencing elections before the FEC can regulate it as a political committee. Uh, so...most bloggers, I presume, will be able to avoid political committee status. But I have to say, it’s not a particularly clean area of law, and we may have to spend some energy looking at that ugly issue....
We have shown at the FEC a willingness to extend the media exemption to some internet-based news services. But this media exception inquiry will go to the question of: “What is a periodical publication?” and “What is a legitimate press function?” It will also get into: “What is news?”...“What is commentary?”...“What is editorial content?”
I hope that when we put proposed rules out for comment, we can get help on how to define these concepts so that we allow for press freedom, but without letting prohibited source funding creep through the door.
So, when the 24th of this month comes around, you’ll see what the FEC is thinking about in this area. We have this proposed rulemaking on the agenda. We’re planning to approve at that point a, a Notice of Proposed Rulemaking wherein we will seek comment. Uh, I assure you that we have not made up our minds on anything yet, and that there is no reason to assume gloom and doom. We recognize that the internet has the potential to convey information at little or no cost, and without the dangers that have led to the campaign finance restrictions. We also recognize that the regulations we adopt, if done sloppily, could lead to massive evasions of the prohibitions on party soft money and corporate and union resources in federal elections.
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