Archive for July, 2012

Cybersecurity Act Now Pending in U.S. Senate

Monday, July 30th, 2012

Jennifer Granick at the Stanford Center for Internet and Society has a good post on the Cybersecurity Act, now pending in the U.S. Senate, authored by Sen. Joseph Lieberman (D-Conn.), Sen. Dianne Feinstein (D-Calif.), Sen. Jay Rockefeller (D-W.Va.) and Sen. Susan Collins (R-Maine).

Jennifer also includes a link to her annotated version ([pdf]) of the bill. The bill is 211 pages. So any annotations are very helpful.

Jennifer says that the bill is “a step forward for those who see government implementation of state of the art security practices lagging behind.” But she emphasizes that the legislation “needs work,” especially to narrow the amount of government cyberspying the bill permits.

The bill already reflects some work by privacy advocates. Amendments that have been inserted to the bill to curtail government civil-liberties incursions are explained by Michelle Richardson in a post on the ACLU’s Washington Markup blog.

The bill, in its current form, does not weigh heavily on private industry, since it offers only “guidelines” for non-government actors, not regulations. But, as Jennifer notes, a report on national cybersecurity issues concludes that voluntary efforts on the part of industry “will be inadequate against advanced nation-state opponents.” In other words, the wisdom is that we will need government regs to keep the power company safe from North Korea.

Almostinnocentbystander Unmasked as Linda Cook

Tuesday, July 24th, 2012

I was pleased yesterday to get a call from Almostinnocentbystander, the anonymous blog commenter from Idaho who has drawn the ire of Republican-party county-level committee member Tina Jacobson.

Unfortunately, the newspaper that runs the Huckleberries Online blog where Almostinnocentbystander left her comments, is no Twitter. The Spokesman-Review decided to not try too hard to resist giving up Almostinnocentbystander’s identity and, instead of appealing a trial court order, decided simply to hand over the requested information. It’s sad to see a newspaper cave like that.

Resigned to being unmasked, Ms. Cook decided to control the manner of her outing and sent an opinion piece yesterday to another Idaho news outlet, which published it with her real name, Linda Cook.

There’s more background on the case in an L.A. Times piece.

More on my conversation with Linda later.

If a Newspaper is a Community Talking to Itself, What’s a Web Forum?

Wednesday, July 18th, 2012

Stacked desks and chairs at Fisk Hall, Medill School of Journalism, Northwestern UniversityStacked desks and chairs in Fisk Hall, Medill School of Journalism, Northwestern University. Photo by me.

On Monday I linked to Dan Turner’s opinion piece in the Los Angeles Times about a local-politico-vs-anonymous-blog-commenter in Idaho.

I wanted to follow up about one particularly interesting comment Turner had:

Web forums, which often function as a sort of blotter for the communal subconscious; comment sections tell us what people are really thinking, even the things they’d be afraid to say under their own names. There is a certain value in that — putting on a mask sometimes frees us to unmask our true feelings. This only causes problems when people treat these anonymous posts with more seriousness than they deserve.

Turner’s quote is a funny take on something I learned in freshman year of journalism school back in 1991 at Northwestern University. A professor told us that one way to define a newspaper is, “A community talking to itself.”

I really liked that definition. And as I took it – as I think the professor intended it – as a glorious compliment to newspapers. It upholds a gives the newspaper a singular and transcendent place in society.

But what are the implications of that 1991 doctrine in the world of 2012?

If a newspaper is supposed to be a community talking to itself, then, in this day and age, when compared with the interactive web, newspapers are just really bad, inefficient newspapers.

After all, how can a mostly monolithic, once-a-day, information bottleneck of a newspaper be a better incarnation of a community talking to itself than a community actually talking to itself?

The fact is, thanks to the web, we see what it really looks like when a community talks to itself. And it’s not real pretty. It lacks the majestic specialness of the grand ol’ newspaper. It’s a garish, sprawling, ungrammatical, hyperbolic, font-impoverished, spectacle of gaucheness. Even in the words of a staunch defender, it is witheringly described as having “a certain value.”

Ouch.

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:

L.A. Times’ Dan Turner Defends Anonymous Commenters and Dares the Fourth Wall

Monday, July 16th, 2012

Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.

Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.

Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:

“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”

To punctuate his argument, he dares the fourth wall.

“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”

Hmmm. No one bit. Just four comments, all of them tré civil.