Archive for the ‘shield laws’ Category

Would Bloggers Be Covered By a Federal Shield Law?

Friday, May 17th, 2013

Since the news of the Justice Department getting their hands on phone records of the Associated Press – without the AP’s cooperation – there has been new talk of a federal shield law.

But how broad would the shield law be? To cut to the chase: Would if cover bloggers?

The issue was nicely teed up in a PandoDaily post yesterday by Adam L. Penenberg:

[W]hen you’re trying to craft laws to protect journalists from having to disclose the identities of confidential sources, the first thing you must do is define what a journalist is. Unfortunately, that’s not so easy, because, well, what is a journalist? I’ve been working as one for almost 20 years, and I couldn’t give you a definition. What’s more, I don’t know anyone who could. More to the point, how do you cover everyone who should be covered in this day, when everybody can be his or her own publisher but not cover those who shouldn’t be protected?

Mr. Penenberg’s post does a nice job of exploring the range of possible ways to deal with that question in surveying some of the many state shield laws in the U.S. and giving some of the history of how false starts on a federal shield law in recent years have dealt with the blogger question.

Of course, there’s also the separate scope question of a national-security exception. With such an exception, the question of who counts as a journalist may often be academic.

New Booklet on Citizen Journalism Law in Massachusetts

Wednesday, May 15th, 2013

Newsgathering in Massachusetts coverHarvard Law School’s Digital Media Law Project and Cyberlaw Clinic have released a booklet called Newsgathering in Massachusetts, available as free-to-download pdf.

It’s an information-packed reference tailor-made for citizen journalists, and it includes coverage of
open meeting laws, public records laws, laws regarding access to courts, and laws regarding protection of anonymous sources.

Massachusetts is an especially interesting state for this area of the law. The Boston-born case of Glik v. Cunniffe, discussed in the booklet, is one of the most important citizen-journalist cases to come down the turnpike in the digital era. In that case, a Simon Glik was arrested in Boston Common for filming the police making an arrest of a homeless man. With the help of the ACLU, he got the U.S. First Circuit Court of Appeals to recognize a First Amendment right to videotape in public places.

Kudos to DMLP and the Cyberlaw Clinic for putting this together.

Twitter Deserves Continuing Credit for Defending Privacy in Harris v. N.Y.

Saturday, September 15th, 2012

gavel coming down on twitter birdFrom what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

The Full Order from Johns-Byrne v. TechnoBuffalo, Plus Excerpts

Tuesday, July 17th, 2012

Updating today’s earlier post, I have now posted the order [pdf] from Johns-Byrne v. TechnoBuffalo, in which the court denied Johns-Byrne’s attempt to find the identity of TechnoBuffalo’s tipster.

Also, here are some more excerpts from the opinion.

More to my point that the judge was not a fan of TechnoBuffalo, thus indicating that the decision in TechnoBuffalo’s favor wasn’t results-driven judging:

Reviewing the [TechnoBuffalo] website is disconcerting. The website makes it clear that TechnoBuffalo is inviting conduct which may or may not be legal and is very likely actionable. They solicit employees of tech companies to be “super secret ninjas” to “discover something top secret in your store’s inventory” and handover “inside information” to TechnoBuffalo who then disseminates it for their own purposes and who will “take your name to the grave.”

And more:

These solicitations are particularly detrimental to the intellectual property industry so reliant upon employee confidentiality and so sensitive to how and when their new concepts are disclosed. … Unlike other famous secrets whose sources were protected in order to inform citizens of government corruption and public misconduct, the sole purpose of the TechnoBuffalo solicitation is to promote TechnoBuffalo, without a second thought as to what harm it may cause lawful and productive companies whose stolen information it leaks.

By the way, I do not buy that these solicitations are detrimental to the industry. Also, I don’t think it is accurate to say that Motorola is in “the intellectual property industry.” Moreover, an “intellectual property industry,” as such, tends not to be heavily reliant on employee confidentiality precisely because of intellectual property laws. Much of this line of argument comes from distorted ideas of what constitutes a “trade secret.” But, anyway, it goes to show that this decision was made on the law, not, as we say in the lawyering business, the “atmospherics.”

One more excerpt, in which we see what the court made of Johns-Byrne’s argument that what TechnoBuffalo peddles is not news but “hype”:

JBC asserts that the content of the article at issue, or moreover, any of the content posted on the TechnoBuffalo website, does not amount to legitimate news but is rather mere “commercial hype” and “entertainment.” However, these concepts or terms of art are nowhere to be found in the Illinois Act. The Act nowhere states that certain content is news and other content, like the “hype” or “entertainment” asserted by JBS, is not news. The content of the “news” simply is not discussed and is not a factor in determining the application of the privilege under the current language of the Act. … TechnoBuffalo’s article falls under the broad, plain meaning of “news.” Therefore, JBC’s attempt to distinguish “hype” from actual news is unavailing.

Previous posts:

Big Win for Bloggers: TechnoBuffalo Court Victory Shields Source of Leaked Photos

Tuesday, July 17th, 2012

stylized "B" logoJon Rettinger, the founder and editor of gadget blog TechnoBuffalo, e-mailed me to let me know that they have won in their attempt to shield the source of leaked images of a yet-to-be-released cell phone.

Judge Michael R. Panter of the Cook County Circuit Court granted TechnoBuffalo’s motion for reconsideration, thus denying plaintiff Johns-Byrne Company, a commercial printer who made the packaging for the phones, the ability to find who in their company leaked the photos.

This is a substantial legal victory for the blogosphere, because it puts blogs on a potentially equal footing with mainstream news media when it comes to the special legal privileges that allow journalists to keep sources anonymous.

Whether blogging will inherit the privileged legal status of the traditional news media is, in my mind, the biggest question in blog law. This case strongly suggests the answer should be “yes.”

The key issue in applying the Illinois law was whether a blog would count as a “news medium.” Judge Panter decided it did, applying the law straightforwardly:

The issue of whether a blog/news site such as TechnoBuffalo is to be treated as a “news medium” is novel and has seldom been dealt with by other states containing shield laws. … “News” is defined by wwww.merriam-webster.com as “a report of recent events” and “previously unknown information.” Similarly Dictinary.com [sic] defines “news” as “a report of recent events.” Under the ordinary meaning of “news,” the article at issue presented a report on recent events, namely the upcoming release of a new Motorola smartphone. It also supplied previously unknown information. As such, TechnoBuffalo’s article falls under the broad, plain meaning of “news.” … In sum, withing the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege.

I applaud Judge Panter’s decision not only because it was, in my judgment, the right one, but even more so because it wasn’t results-driven jurisprudence. Judge Panter made it clear was was not love-struck with the scoop-savvy blog, which solicits anonymous tipsters:

Encouraging and enabling people to violate relationships of trust with their employers and to steal proprietary information may be odious. It may weaken the very industry that TechnoBuffalo depends upon. It may itself be actionable under the statutes and authorities JBC cites. However, as of this writing, it cannot be excluded from the extremely broad protection of the journalistic privilege.

That’s an excellent example of good judging.

Previous posts:

Update on Johns-Byrne Co. v. TechnoBuffalo

Tuesday, May 22nd, 2012

TechnoBuffalo logo and headshot of CEO Jon Rettinger

In the case of Johns-Bryne Co. v. TechnoBuffalo, a commercial printer is suing a venerable gadget blog to find out who leaked photos of some new cell phone packaging the printer was producing for Motorola. When I last blogged about this in January, an Illinois state trial-level court had just rebuffed TechnoBuffalo’s attempt to use Illinois’s reporter’s privilege law to prevent having to turn over information about the leak. The court said TechnoBuffalo wasn’t a “news medium,” and its bloggers aren’t “reporters.” TechnoBuffalo turned around and asked the court to reconsider the ruling and vowed to appeal if necessary.

I contacted TechnoBuffalo’s CEO Jon Rettinger (heroic Twitter profile pic above left) to ask for an update. We talked on the phone. I was impressed with his sense of conviction – he is working hard to protect the blog’s source.

The motion for reconsideration is, at this point, still pending. On reconsideration, TechnoBuffalo has sought to put more support behind the notion that blogs are real news outlets. To beef-up bloggery bona-fides, TechnoBuffalo pointed out that a blog (HuffPo) recently won a Pulitzer. They also pointed out that TechnoBuffalo is syndicated word-for-word on more traditional news outlets, such as Business Insider, and that TechnoBuffalo bloggers are commonly tapped to make appearances on the cable news channels.

This will continue to be an interesting case to watch as it gets right at the heart of the matter the most salient question of blog law: To what extent the law will blogging inherit the privileged legal status of heritage journalism?

Illinois Court Rules TechnoBuffalo Blog Not Covered by Shield Law

Monday, January 23rd, 2012

Photo of shiny booklet with text, logo, and photo of phone
A leaked image published by TechnoBuffalo.

A state court in Illinois has ruled that gadget blog TechnoBuffalo is not covered by the Illinois shield law. Chris Healy of the Reporters Committee for Freedom of the Press reports on the decision.

In August of last year, TechnoBuffalo published photos of an instruction manual for a yet-to-hit-stores Motorola Droid smartphone. The photos came to the blog by way of an “anonymous tipster.”

The Johns-Bryne Company, the printers hired to reproduce the material for Motorola, sued the blog to learn the identity of the leak, and the blog claimed the protection of Illinois’s reporter’s privilege law. The court, however, read the statute in a restrictive way, saying that TechnoBuffalo does not qualify as a “news medium” and its bloggers are not “reporters,” thus making the law inapplicable.

TechnoBuffalo has asked the court to reconsider and has vowed to appeal.

Volokh Steps In to Help Blogger Crystal Cox Challenge $2.5 Million Defamation Judgment

Tuesday, January 10th, 2012


Eugene Volokh (Photo: Jeff Barnett-Winsby / UCLA)

Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.

Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”

A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.

The Hale Case: What’s Good for Old-Guard Journalists May Not Be Good for Bloggers

Friday, June 10th, 2011

The Reporters Committee for the Freedom of the Press has issued a news release about the New Jersey Supreme Court’s decision in Too Much Media v. Hale [pdf of opinion], in which the state’s shield law was held not protect writer Shellee Hale in responding to discovery requests about her sources for allegedly defamatory postings she made on an online message board.

The RCFP piece’s outlook is rosy. New Jersey media lawyer Bruce Rosen is quoted as saying the decision is a “victory for journalists” because, by overturning the intermediate appeals court decision in the case, the burden has been lowered on people seeking to invoke the shield law.

But for those people who care as much about bloggers as old-guard reporters, the takeaway from the decision may be less sanguine.

… Rosen said that individuals who host blogs and view themselves as citizen journalists may face hurdles to invoking the shield law.

“For the general public, [the case] makes it harder for individual bloggers to have automatic protection,” he said.

Implode-o-Meter Decision Upholds Journalist Privilege for Website

Friday, May 7th, 2010

A decision out of the New Hampshire Supreme Court yesterday on the journalist/source privilege was a victory for a website that is a mix of blogs and longer-format articles with anonymous commenting from the public. The site, The Mortgage Lender Implode-O-Meter, is owned and operated by a company that has the coolest name EVER:

IMPLODE-EXPLODE HEAVY INDUSTRIES, INC.

That is awesome. Seriously. If they issue stock certificates, I would buy shares just to be able to get the stock certificate to put up on my wall.
But back to the law… The court’s opinion is here: The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. [PDF]
The Implode-o-Meter Blog explains:
The case was The Mortgage Specialists vs. Implode-Explode Heavy Industries, Inc. (the owner of ML-Implode.com). It concerned items posted to MoSpec’s “Ailing/Watch List” entry — the 2007 “Loan Chart” data for the company, and a post by username “Brianbattersby” accusing MoSpec and its President, Michael Gill, of habitual/systemic fraud.
Sam Bayard at Citizen Media Law Project provides analysis here. The court held that the state’s qualified reporter’s privilege applies and Implode-O-Meter could use it to protect the identity of an anonymous source that leaked a loan document to the site. The court wrote:
[W]e reject Mortgage Specialists’ contention that the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting.  … [W]e observe that: “Freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals. . . .  The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. … [quoting Branzburg v. Hayes, 408 U.S. 665 (1972)]“
The victory is, sadly, bittersweet for Implode-O-Meter. Since the privilege is a qualified one, the N.H. Supreme Court sent the case back to the trial court to engage in a balancing test. And that’s a problem, because Implode-O-Meter is now, thanks to lawsuits, out of money. Founder and publisher Aaron Krowne said yesterday:
We are pleased with the court’s ruling on the fundamental questions of free speech and find little to complain about in the analysis. … We are, however, perplexed that the case was not completely dismissed. … Besides the overall frivolity of the original action, we are unclear what valid issues involving us remain in play … At any rate, since we have been rendered insolvent by the expense of this and similar frivolous SLAPP suits, we aren’t sure how we will be able to mount a continuing “defense” at all.

Bloggers Provide Early Legal Analysis of Jason Chen / iPhone Search

Friday, April 30th, 2010

Some excellent legal commentary on the iPhone/Chen matter:

Orin Kerr on Volokh Conspiracy
Paul Ohm on Freedom to Tinker
Matt Zimmerman on EFF’s Deeplinks Blog

Police Raid of Blogger’s Home Creates Shield Law Question

Wednesday, April 28th, 2010

Silicon Valley’s multi-jurisdictional task force R.E.A.C.T. (“Rapid Enforcement Allied Computer Team”) sounds like something I would make up for a law-school exam hypothetical. But it is not, and on Friday night, Gizmodo blog editor Jason Chen came home to find R.E.A.C.T. seizing computers and servers pursuant to a search warrant issued in regard to a prototype Apple 4G iPhone, which Apple lost and Gizmodo “found,” and then dissected and reviewed. (Gizmodo’s wrap-up.)

COO of Gizmodo owner Gawker Media, Gaby Darbyshire, says the search was illegal under California Penal Code § 1524(g), a journalist shield law. (Gizmodo’s post, with search warrant document images.)

Lyrissa Lidsky on PrawfsBlawg discusses the question of whether bloggers are properly entitled receive protection under the federal Privacy Protection Act of 1980, 42 U.S.C §2000aa et. seq., intended to squelch newsroom search and seizure.

More: Alexandra Jaffe on editoersweblog.org; Nick Bilton on NYT’s Bits blog.