Archive for the ‘credentials / press access’ Category

Snowed Over by a Driving Ban?

Sunday, February 10th, 2013

Snow piled up along Somerville Street in Somerville, Mass. on February 9, 2013, the day after a massive snowstorm prompted state officials to issue a state-wide driving ban. (Photo by Darcy, via Flickr)

The blizzard travel ban in Massachusetts I blogged about was lifted yesterday after 24 hours, according to announcement on the front page state’s emergency management agency.

If you are a blogger or citizen journalist who was cited, arrested or hassled by police in Massachusetts or elsewhere during the big blizzard this weekend, please let me know – I’d love to blog about what happened to you.

If you are an attorney representing a citizen journalist or blogger who is facing a fine or jail time for having driven during a weather-induced travel ban which had an exception for news media, I’d love to talk to you as well.

There was no official press release from the governor’s office providing official notice of the lifting of the ban, nor, apparently, is there a superseding executive order.

About the photo: “Somerville Street in Blizzard Nemo” by MoreLife81 / Darcy, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

Blizzard of Blog Law

Friday, February 8th, 2013

As the 2012 superblizzard hits New England, Massachusetts Governor Deval Patrick has issued an executive order banning motor vehicle traffic in the state.

But among the exceptions – along with the police, firefighters, healthcare workers – is the “news media.”

So, does that mean bloggers and citizen journalists can drive right now in Massachusetts? Are they news media?

The executive order – No. 543 [pdf with signature] – does not define “news media.” So should we interpret that to include only newspaper, television, and radio, or bloggers and independent journalists as well? The stakes are high. The Milford Daily News reports that violations of the ban can be punished with a year in jail.

By the way, the order raises a general constitutional question regarding the unenumerated, but court-recognized, right to travel. I am sure that the Commonwealth of Massachusetts would argue that preventing accidents during Snowmaggedon is a compelling government interest and the travel ban is narrowly tailored to serve those ends, so the order would survive whatever constitutional scrutiny put to it.

But I am not so sure. If the travel ban were held to require strict-scrutiny analysis, then a state-wide ban of indefinite duration seems to me not to be narrowly tailored.

When you scrutinize the details, the order seems not to make a lot of sense. Here is the full list of exemptions under the order. Notice anything odd?

  • public safety vehicles and public safety workers, including contract personnel
  • public works vehicles and public works workers, including contract personnel; government officials conducting official business
  • utility company vehicles and utility workers
  • healthcare workers who must travel to and from work in order to provide essential health services
  • news media
  • travel necessary to maintain and deliver critical private sector services such as energy, fuel supplies and delivery, financial systems and the delivery of critical commodities
  • travel to support business operations that provide critical services to the public, including gasoline stations, food stores and hardware stores

Why is travel allowed for gas-station workers if almost no one will need gas since nearly all vehicles are banned?

And the hardware store thing is strange as well. So, hardware stores will be able to have the employees they need to stay open – but no one can drive to the hardware stores. Granted, a few people might be within walking distance of one. But then, what kind of hardware do you need in the middle of a blizzard? I get that there’s a need for plywood before a hurricane hits, but what do you need with hardware during a blizzard?

Finally, I have to say I find it a bit funny that the web-version of the order refers to Governor Patrick as “His Excellency.” I didn’t know anyone in the U.S. used that title. To be fair, Massachusetts has a constitution older than the U.S. Constitution. But still, “His Excellency” seems a little needlessly eccentric.

Some Blog Law for Super Bowl Sunday

Sunday, February 3rd, 2013

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.

Practical Advice for Protest Reporting from Web Chat with Law and Journalism Experts

Friday, August 17th, 2012

I attended yesterday’s web chat about reporting at political convention protests. The chat,
sponsored by Harvard’s Citizen Media Law Project, the International News Safety Institute, and the Free Press organization, was chock full of practical advice served up with a generous helping of what-it’s-like personal accounts.

Natasha Lennard, who has worked for the New York Times and now writes for Salon.com, described how she was among 700 people kettled and arrested in the Occupy Wall Street protests. She said that for the NYPD, if you are in the wrong place, it doesn’t matter if you are press.

“If you stick with the crowd which is what you feel you should do to get the story, you end up in a very precarious situation yourself,” Lennard said.

Andy Sellars, an attorney with Harvard Law School’s Berkman Center, made the point that when the police are ordering people to move, it helps in many cases to self-identify as a member of the press, but it might make reporting more difficult as you may wind up getting moved far away from the action.

For unaffiliated citizen journalists, Sellars said that it may be a good idea to use a homemade credential. But he warned not to copy anyone else’s credentials. Using credentials intended to look like they were issued by the police, for instance, may be unlawful in itself and, at any rate, is likely to make you a special target of for officers.

John Knefel, an independent journalist who has a radio show with his sister on Radio Dispatch, described his arrest at Occupy Wall Street. After being thrown to the ground, he was arrested and held for about 37 hours.

It was an ordeal, and Knefel singled out New York’s jail food for special scorn. While the arrest didn’t deter Knefel from attending and reporting from events, he said, it make him less likely to rush to a specific location where arrests were happening.

“Clearly it’s meant to have a chilling effect,” Knefel said. “That’s the goal here. It’s to make activists want to stay home. It’s to make journalists want to not cover things or to not cover them as directly or as intimately as they may want to.”

With a view toward the upcoming major-party political conventions in Charlotte, N.C. and Tampa, Fla., Sellars noted that local laws prohibit certain items. In Florida, prohibited items include tripods and bipods. There are also prohibitions on glass, ropes, and masks.

Natasha Lennard’s practical advice included going the site early to give yourself an internalized map of the relevant portions of the city. Knowing what side street you can duck into could help you avoid getting stuck, she said. She also rattled off a list of items to bring with you. She recommended packing milk of magnesia for cleaning away pepper spray, a bike helmet to wear if the batons come out, a bandana to pull out in the case of tear gas, and a lawyer’s phone number – inked on your forearm.

Lennard noted that you should not expect your cell phone to work if things get heated. Cell sites could get overloaded precisely when you most want to make a call or get information out.

Another web chat on the same topic is scheduled for Thursday, August 23 at 8 p.m. Eastern. To attend, go to the Free Press website. You don’t need to sign up in advance.

Free Webinar from RCFP on Covering Protests

Saturday, May 5th, 2012

Reporters Committee for Freedom of the Press logoThe good folks at the Reporters Committee for the Freedom of the Press are putting on a free webinar for reporters and photographers who are covering events, such as protests, where they could be blocked from reporting or detained by the police. Examples include the Occupy protests as well as the upcoming political conventions in Charlotte and Tampa. Or, you know, if you are in Los Angeles, your local elementary school science fair.

The one-hour webinar will be held May 9, 2012 from 1:00 p.m. EDT. (That’s 12 noon Central, which is my time zone and the time zone where the next big opportunity for reporter-police interaction will be: Chicago, May 20-21, for the NATO Summit.)

The webinar will be lead by Lucy Dalglish, RCFP Exec Director and Gregg Leslie, Legal Defense Director. It looks like they will be giving both a theoretical perspective on where your journalist rights come from as well as practical advice on what to do when confronted or detained by the police.

Excellent stuff! I am signed up and looking forward to it.

To reserve your own place:

https://www4.gotomeeting.com/register/941031095

Cameras in the U.S. Supreme Court Closer to Reality

Thursday, February 16th, 2012

Front of U.S. Supreme Court building with dramatic lightingPhoto by me.

Arthur Bright has a nice post at Citizen Media Law Blog on the good news that the Senate Judiciary Committee voted 11 to 7 to require the U.S. Supreme Court to allow television cameras into hearings.

The bill that has been approved in committee, S.B. 1945, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

We’ll see if the bill becomes law. And if it does, the U.S. Supreme Court could always, of course, strike it down (making for a fun new case for your Federal Courts textbook). But it’s a great step in the right direction for open government and media freedom.

My concern going forward, if cameras are allowed into SCOTUS, is that everyone will have equal access to the footage. If the networks put their own cameras in and produce copyrighted footage, that won’t be a boon to bloggers and citizen journalists. The best implementation would be for the court to do its own television feed, which, as a federal government work, would be copyright-free.

And, of course, there’d be fewer cords to trip over …

CJR: Who’a a Journalist? – NYPD’s Credentialing at Occupy

Wednesday, January 4th, 2012

Columbia Journalism Review
An article by Erika Fry in the Columbia Journalism Review investigates an intriguing question arising out of the police action against people reporting on the occupy protests in New York. With bloggers and other non-traditional reporters seeking to avoid being swept up by the New York Police Department, Fry asks: Who’s A Journalist?

The article’s a great read, and it gets at one of the essential questions of blog law – to what extent are bloggers entitled to be treated by the police and the government like traditional journalists?

The particular object of Fry’s scrutiny is the NYPD’s system for issuing press credentials to reporters. The credentials help in official and unofficial ways, getting reporters access to press conferences and allowing them to avoid hassles at crime scenes and to avoid roundups of crowds. The way the NYPD doles out press credentials has been hotly criticized. But for bloggers, things are, at least, better than they used to be. Fry writes:

Yet this system, backlog and all, is roundly considered by journalists and civil liberty types to be an improvement over the NYPD’s press credentialing process that was in place until 2010, and was notorious for being opaque and inaccessible to bloggers and journalists from nontraditional media organizations—so much so that three men filed a lawsuit against the NYPD for unfairly denying them credentials in 2008. As Gothamist reported at the time, the reforms to the system in 2010 were intended to “help the Police Department modernize the City’s credentialing system to reflect changes to the media industry and, for the first time, expressly incorporate online-only media such as blogs.”

UK Anti-Terrorism Law Invoked Against Dad Who FB’d Photo of Daughter Eating Ice Cream in Mall

Tuesday, October 11th, 2011

Four-year-old girl eating ice cream on a seat fashioned like a pink Vespa scooter

The face of terrorism? (Photo: Chris White)

Chris White used his cell phone to take the adorable photo at right of his 4-year-old daughter eating ice cream in the Braehead Shopping Centre in Glasgow, Scotland. And with that, Mr. White took his fateful step toward becoming a terrorist – or so it would seem in the view of authorities who then swooped down on him.

To be entirely frank, I would understand authorities accusing me of terrorism for bringing my 3- and 6-year-old boys into a shopping mall. They go berserk in public spaces. Generally, you can’t capture a non-blurry photo of my boys with a cell phone – they move too fast. Often they are moving fast in a way that constitutes an immediate threat to property and person. But this photo of Chris White’s daughter seems to me to have nothing-to-do-with-terrorism written all over it.

I will let Mr. White explain what happened in his own words:

Walking down the shopping mall a man approached me from behind as I was carrying my daughter in my arms. He came from behind me, cutting in front of me and told me to stop. That was quite a shock as I am wary of people with crew cuts and white shirts suddenly appearing in front of me [Me too. –EEJ], but then realised he was a security guard. He then said I had been spotted taking photos in the shopping centre which was ‘illegal’ and not allowed and then asked me to delete any photos I had taken. I explained I had taken 2 photos of my daughter eating ice cream and that she was the only person in the photo so didn’t see any problem. i also said that I wasn’t that willing to delete the photo’s and there seemed little point as I had actually uploaded them to facebook. He then said i would have to stay right where I was while he called the police …

The older police officer … said that there had been a complaint about me taking photos and that there were clear signs in Braehead shopping centre saying that no photographs were allowed. I tried to explain that I hadn’t seen any clearly displayed signs and that I had taken 2 photos of my daughter. … He then said that under the Prevention of Terrorism Act he was quite within in his rights to confiscate my mobile phone without any explanation for taking photos within a public shopping centre[.] … He then said on this occasion he would allow me to keep the photos, but he wanted to take my full details. Name, place of birth, age, employment status, address. … The police officer also said that the security guard was within his rights to now ask me to leave Braehead Shopping Centre and bar me from the premises which I was happy to oblige.

The UK Prevention of Terrorism Act apparently allows the UK’s Home Secretary or a court to issue a “control order” that can restrict a terrorist suspect’s liberty in various ways, including prohibiting the person from possessing a mobile phone. I don’t see in the act where it allows a police officer to exercise that power on the spot when confronting a person the officer believes to be a suspect. But maybe someone who understands UK law better can chime in on that.

Well, after Mr. White started a Facebook page called Boycott Braehead, the story was picked up by the BBC, and within hours the management of Braehead was apologizing and announcing a change in policy so that people will be able to take photos of friends and family. They are also saying they will implement the change at all 11 centers owned by the same company.

Meanwhile, the Boycott Braehead page has 22,381 likes. Check that: 22,475. (It’s going up as I write this.) Now it’s 22,498.

More:

First Circuit Case on Right to Video Police in Public Places

Friday, March 18th, 2011
Boston skyline over the Charles River (Photo: EEJ)

Boston skyline over the Charles River (Photo: EEJ)

The First Circuit Court of Appeals is considering Glik v. Cunniffe, et al (10-1764), a case that has big-time implications for American bloggers and other members of the citizen media with a bent toward gathering news where it happens.

As the Citizen Media Law Project reports on its blog, Harvard Law School’s Cyberlaw Clinic, the CMLP, and a coalition of other organizations, including the Reporters Committee for Freedom of the Press and several big media companies, filed an amicus curiae (“friend of the court”) brief recently in the case. The amici urged the court to uphold a First Amendment right to gather news in public places.

Here’s the brief: [pdf]

An attorney, Simon Glik, used his cellphone to make a video recording of Boston Police officers arresting a homeless man in downtown’s Boston Common, a big public park. Obviously, the police were annoyed. Glik was then arrested. The charge was an interesting one – criminal wiretaping.

Yes, really.

Glik was charged with a violation of the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99). Here’s the most relevant bits of the law:

B. Definitions. As used in this section—

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Do you think what Glik was doing was really “secret”. I kind of doubt it, since he was arrested on the scene.

Specifically, the police noticed what Glik was doing and then asked him whether the phone had audio recording capability. After Glik confirmed that it did, they arrested him.

Why was Glik recording the arrest of the homeless man, by the way? He thought the police were using excessive force. Now you begin to get a picture of just how annoyed these police officers must have been.

Well, the charges were, as you might imagine, quickly dismissed. After that, Gilk filed suit in federal court to vindicate his rights. The district court denied the defendant’s motion to dismiss, and now we are in the Court of Appeals.

Good luck to Glik and the amici!

More:

UK Courts Give Go Ahead to Blogging Live from Court, But Give Preferences to Traditional Media

Friday, February 25th, 2011

The Lord Chief Justice of England and Wales has issued a document [pdf] of “interim practice guidance” regarding the use of “live text-based forms of communication … from court.” Blogging and tweeting, for instance.

The document generally supports allowing persons to tweet and blog from court to provide rapid reports of court proceedings. Unfortunately, however, the guidance draws a distinction between the “wider public” and “representatives of the media” in a way that may be used to discriminate against citizen bloggers:

[I]t may be necessary for the judge to limit live, text-based communications to representatives of the media for journalistic purposes but to disallow its use by the wider public in court. That may arise if it is necessary, for example, to limit the number of mobile electronic devices in use at any given time because of the potential for electronic interference with the court’s own sound recording equipment, or because the widespread use of such devices in court may cause a distraction in the proceedings.

I find this passage troubling. Today, at least in the Twittersphere, anyone with a non-private Twitter account is on an equal footing with a salaried newspaper reporter with a Twitter account. In fact, there are a lot of citizen tweeters who have many more followers than many newspaper or television reporters with active Twitter accounts.

N.H. KingCast Blogger Lost His Pre-Election Challenge in Court

Thursday, November 4th, 2010

Here’s an update on the crusade of left-leaning New Hampshire blogger Christopher King to be able to attend campaign events of Kelly Ayotte, Republican for U.S. Senate.

The Nashua Telegraph reports today that King lost his pre-election request for a federal injunction that would have permitted him entry to Ayotte’s election-day party.

The party went on without him, and it turned out to be a victory party. The Sarah-Palin-endorsed Ayotte beat Democrat Paul Hodes. That keeps the seat – now held by retiring Republican Judd Gregg – in the column for the GOP.

In recent weeks King was bounced out of a Republican fundraiser by the Nashua police – at the organizers’ request – and was barred from attending Ayotte campaign events.

Despite losing the injunction, King is committed to pursuing the case and its crop of constitutional questions. As the Nashua Telegraph explains:

Those issues involve whether a private event that aggressively seeks media coverage can cherry pick which reporters attend and which don’t.

It is also about whether bloggers – including sharp-tongued partisans like King – will receive the same graces of First Amendment shed on mainstream journalists.

This is a case to watch.

New Deepwater Horizon Media Policy’s Implications for Bloggers Unclear

Wednesday, July 14th, 2010

Coast Guard Cutter Walnut skims oil using an inflatable boom, July 2, 2010. (Photo: U.S. Coast Guard)

The U.S. Coast Guard has issued a new policy for boaters trying to get near to Deepwater Horizon oil spill clean-up and containment operations. Previously, there was a 20-meter exclusion zone around booms and operations.

On Monday, the Coast Guard announced in a press release “new procedures to allow media free travel within the 20-meter boom safety zones.” Getting inside that zone will obviously be a priority for persons trying to get the best photographs of the spill and the response.

But National Incident Commander Admiral Thad Allen drew a distinction that may separate citizen bloggers from professional press.

“We need to discriminate between media, which have a reason to be there and somebody who’s hanging around when we know that we’ve had equipment vital to this region damaged,” Allen said in the press release.

The new procedure calls for a credential to be issued to “media representatives.” The press release says, “Media representatives can obtain credentials by providing their name, media affiliation, and contact information to the Unified Area Command Joint Information Center at UACNOLAJIC@gmail.com.”

I would be curious to know if non-professional bloggers are provided with or denied credentials.