First Amendment Coalition » bloggers

PBS’s MediaShift lists eleven top stories in media law for 2011

donal brown — Thu, 05 Jan 2012 20:40:33 +0000

MediaShift’s top media law stories for 2011 include journalists’ coverage of Occupy movements; the proposed online piracy legislation; net neutrality; coverage of live police actions; Righthaven and the “hot news” doctrine. -db

From a commentary in MediaShift, December 23, 2011, by Rob Arcamona, Jeff Hermes and Andy Sellars.

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Ruled not a journalist, Oregon blogger loses $2.5 million defamation suit in federal court

donal brown — Wed, 07 Dec 2011 19:19:26 +0000

A blogger who wrote critical articles about an investment firm lost a $2.5 million defamation suit to the firm after an U.S. District Court judge ruled that she was not a journalist so not under the protection of the Oregon media shield law. She could not therefore withhold the identity of a source needed to verify the one statement that the judge found libelous. -db

From a commentary in Seattle Weekly, December 6, 2011, by Curtis Cartier.

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Blogger’s right to anonymity upheld in federal court

donal brown — Thu, 17 Nov 2011 18:37:02 +0000

A federal district judge held that a blogger could remain anonymous since his First Amendment rights were paramont to discovery needs in a defamation case.

The “Skywalker,” as the blogger is known, is charged with defaming the spiritual leader of the Art of Living Foundation.

From the Courthouse News Service, November 16, 2011, by Maria Dinzeo.

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Bloggers’ ranting style protects in free speech cases but may hurt in other realms

donal brown — Tue, 08 Nov 2011 21:41:29 +0000

Bloggers may win victories in defamation cases since their heated critical commentary is easily identified as opinion rather than fact and not libelous, but the advantage may have a serious down side, writes John Sharkey for the Citizen Media Law Project.

Sharkey is concerned that in ruling for bloggers in defamation cases, judges are making disparaging comments about blogging, saying in one case that “blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact.” Sharkey is afraid that given a number of these judicial judgments, bloggers may have difficulty in the realm of shield law and news gathering privilege. -db

From a commentary for the Citizen Media Law Project, November 7, 2011 by John Sharkey.

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Copyright troll Righthaven faces shutdown

donal brown — Thu, 03 Nov 2011 20:18:37 +0000

A federal court in Nevada has given United States marshals authorization to seize over $63,000. in cash and/or assets from Righthaven. The Las Vegas copyright troll failed to pay a court judgment from August 15.

Righthaven tried to make an enterprise out of suing bloggers over copied newspaper articles, but it was revealed in court proceedings that Righthaven had not actually bought the copyrights of the articles. -db

From a commentary in Ars Technica, November 3, 2011, by Nate Anderson.

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Bloggers advocating democratic reform suffer oppression

donal brown — Mon, 31 Oct 2011 17:14:27 +0000

Despite the promise of the Arab Spring, bloggers world-wide are seen as threats to public order and arrested and imprisoned for speaking out for democratic reform.

Bloggers are in danger in many countries including Syria, Egypt, Thailand and the United Arab Emirates. -db

From a commentary by the Electronic Frontier Foundation, October 27, 2011, by Jillian C. York.

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EFF argues for right to online anonymity

donal brown — Mon, 03 Oct 2011 19:06:40 +0000

In reaction to a Washington Times editorial, an EFF commentary argues that online anonymity is crucial to protect the free speech rights of vulnerable citizens from gay youth to Syrian dissidents.

The Times editorial called for the end to online anonymity arguing that it was needed to reestablish civility given the vicious lies and hateful speech that plague the Internet. -db

From a commentary for the Electronic Frontier Foundation, September 30, 2011, by Jillian York and Trevor Timm.

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Expert panel says too early to assess role of social media in Arab spring

donal brown — Tue, 20 Sep 2011 17:16:28 +0000

Panelists at the U.S. Institute of Peace addressed the role of social media in recent uprisings in the Arab world with some saying that the use of social media was part of a power shift from nation states to smaller groups.

Others said the information about the social media is still too mixed and scattered to draw any firm conclusions. -db

From NextGov, September 16, 2011, by Joseph Marks.

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California college dean loses defamation suit against blogger

donal brown — Mon, 23 May 2011 17:38:22 +0000

A Los Angeles judge agreed with a blogger that a former Cal Poly College of Engineering dean had violated his First Amendment free speech rights in filing a defamation suit over posts challenging an agreement to open an engineering program in Saudi Arabia that would allegedly bar women, Jews and gays.

The judge said the blogger was entitled to legal fees as the dean’s suit violated the state’s anti-SLAPP law, a strategic lawsuit against public participation. -db

From the Cal Coast News, May 21, 2011, by Lisa Rizzo.

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Study shows traditional media plays crucial role in enforcing open govenment

donal brown — Tue, 26 Apr 2011 18:58:02 +0000

Research by a Brigham Young professor revealed that newspapers are behind almost every court case and law promoting public access and open government. With newspaper revenues shrinking, it is not guaranteed that as bloggers take over much of the reporting that they will be able to challenge government agencies.

The online news publication ProPublica that does investigative reports is fortunate to have pro bono legal work, but others may have to bank on greater transparency from government and help from nonprofits and universities. -db

From the Daily Herald, April 24, 2011, by Heidi Toth.

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New York: Student speech rights set back by federal appeals court ruling against high school blogger

donal brown — Tue, 26 Apr 2011 14:55:27 +0000

A New York federal appeals court delivered a double whammy to student free speech rights in ruling that a high school administration could punish Avery Doninger for statements in her off-campus blog and subsequently for wearing a “Team Avery” T-shirt at a school assembly to protest the earlier punishment.

The ruling focused on the issue of “qualified immunity”, that government officials cannot be held liable for damages even if they violate the law if the law was not “clearly establish” by a factually similar judicial decision. The appeals court did not address whether the students’ free speech rights were violated. -db

From a press release from the Student Press Law Center, April 25, 2011.

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Opinion: Righthaven lacks exclusive copyright ownership of Stephens Media news articles

donal brown — Tue, 19 Apr 2011 18:26:56 +0000

Electronic Frontier Foundation Senior Staff Attorney Kurt Opsahl says that in obtaining from a federal district court an agreement between Righthaven and Stephens Media, it discovered that although Righthaven claimed in its suits for copyright infringement that it held exclusive rights to reproduce and distribute Stephens Media news articles, that the agreement stated that Righthaven “shall have no right or license to Exploit or participate in the receipt of royalties from the Exploitation of the Stephens Media Assigned Copyrights other than the right to proceeds in association with a Recovery.”

Opsahl thinks Righthaven lacks standing to sue since copyright law does not allow suits for infringement unless rights to reproduce and distribute a work are actually being infringed.

Righthaven is attempting to create a business model of suing bloggers for copyright infringement. It does not write the news articles but instead trolls the Internet, looking for news articles published by Stephens Media or Media News Group and then gets the publisher to “assign” the copyright so it can file a lawsuit. -db

From a commentary from the Electronic Frontier Foundation, April 18, 2011, by Kurt Opsahl.

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Libel rules with impunity on social network

donal brown — Tue, 15 Mar 2011 18:16:03 +0000

The younger generation is filing few libel suits for such as lies and character assassination, fueling speculation that they have greater tolerance of “hurly, burly Internet conversation.”

Or is it just that young people realize that bloggers have limited resources, decimating the chances of obtaining damages? -db

From the Minneapolis-St. Paul Star Tribune, March 14, 2011, by Kevin Giles.

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Media Bloggers Association criticizes Righthaven in amicus brief

donal brown — Mon, 28 Feb 2011 21:20:52 +0000

The Media Bloggers Association has asked a federal judge in Nevada to award only minimal damages and no lawyer’s fees to Righthaven who is suing a blogger for violating copyright in publishing an article from the Las Vegas Review-Journal on his website.

The lawyers for the bloggers argued in the brief that the damages asked, $150,000, and $1,850 in lawyer’s fees were excessive in light of nature of the alleged infringement. -db

From a commentary in Citizens Media Law Center, February 24, 2011 by David Ardia.

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CIA reports influence of Chinese bloggers on government policy

donal brown — Thu, 20 Jan 2011 18:35:01 +0000

The U.S. Central Intelligence Agency said Chinese bloggers influenced government policy, citing a December incident in which bloggers expressed outrage at the enslavement of mentally retarded men to work at a building materials plant in Sichuan province. -db

Secrecy News
January 19, 2011
By Steven Aftergood

Chinese bloggers “expressed rage and despondence after learning about the plight of 12 mentally retarded men from Sichuan province who were sold into slavery to work at a building materials plant in the Xinjiang Uighur Autonomous Region,” according to a CIA review of the Chinese blogosphere (pdf) during the week of December 10-17, 2010.

The CIA survey portrays Chinese bloggers as alert, engaged and influential in shaping government policy.

“The controversy over the mentally retarded workers set off a passionate discussion in the blogosphere on such topics as the treatment of disabled people in society and the role officials play in allowing workers to be exploited in private enterprises.”

“The public reaction resulting from the story’s popularity in the blogosphere as well as in traditional media almost certainly had an effect on the quick government response,” the CIA report said.

A copy of the report was obtained by Secrecy News. See “This Week in the Chinese Blogosphere: Week Ending 17 December 2010,” CIA Open Source Works, December 17, 2010.

Among several other current news stories, the report said, “Many Chinese Netizens continue to follow and comment on the legal case of Wikileaks.org founder Julian Assange.”

Blogger sued for copying news article claims license provided for republication

donal brown — Thu, 19 Aug 2010 20:12:20 +0000

A blogger sued by the Las Vegas Review-Journal for republishing one of its articles has argued that the newspaper gave him “implied license” to republish by encouraging readers to save links to the work and send the links to others. -db

Online Media Daily
August 18, 2010
By Wendy Davis

A blogger sued for allegedly reposting a Las Vegas Review-Journal article has raised an argument that, if accepted, could affect a broad swath of copyright infringement cases. The blogger, Jan Klerks, who publishes the noncommercial site www.skyscrapercity.com, about urban development, argues that the newspaper granted him an implied license to republish its articles by encouraging readers to save the pieces and send them to others.

The Las Vegas Review-Journal “offered the allegedly infringed work to the world for free when it was originally published,” he argues. “It encouraged people to save links to the work or to send links to the work to others anywhere in the world at no cost and without restriction. … Accordingly, based on this implied license, the allegedly infringing copy was, in fact, authorized by the Las Vegas Review-Journal and therefore, is not an infringement.”

Klerks raised the argument as part of a motion to vacate a default judgment entered against him earlier this year. He says that he didn’t appear in court because he wasn’t properly served and that the judgment should be set aside because he has valid defenses, including an implied license.

If courts agree that the paper did create an implied license, publishers could find it more difficult to sue bloggers, or even threaten to sue them, for copyright infringement. But whether the argument will gain traction in court appears to be an open question.

“Is there an implied license here? Possibly,” says Eric Goldman, director of the High Tech Law Institute at Santa Clara University.

Even so, he says, it’s not clear that an implied license would allow someone to copy an article to a blog, as opposed to send it to one other person via email. “The problem with implied licenses is that we never know the scope of them until a judge tells us.”

Klerks is just one of around 100 small publishers and bloggers sued by Righthaven, a copyright enforcement outfit that has acquired the rights to dozens of Las Vegas Review-Journal articles.

The company has grown famous for suing people who posted news articles — and links back to the Review-Journal — without first contacting the publishers and asking them to take down the material. Since launching in March, Righthaven has sued mom-and-pop outfits, nonprofits like NORML (National Organization for the Reform of Marijuana Laws) and political organizations including the Democratic Party of Nevada.

Las Vegas Review-Journal publisher Sherman Frederick justifies the lawsuits as a valid way to combat theft of its intellectual property. But critics, like University of North Dakota School of Law professor Eric E. Johnson, see the cases as a shakedown.

“Filing federal lawsuits against frightened individual bloggers who are without significant legal or financial resources, and doing so without any attempt whatsoever to resolve the dispute informally, is deplorable behavior,” Johnson writes on his blog. “That would apply to anyone. But for a newspaper to do it is abhorrent.”

At least 20 of the lawsuits appear to have settled, with most of the deals confidential. In a few instances, however, the terms were made public. NORML paid $2,185. Other settlements reportedly were as much as $5,000, according to the Las Vegas Sun.

Some of the remaining defendants are fighting back in court, raising a variety of arguments. In addition to Klerks’ implied license theory, some defendants argue that their posts were a permissible fair use.

In some of the cases, the bloggers allegedly posted short excerpts of the news articles. In others, however, the bloggers appear to have reposted the entire article, which makes their fair use argument appear weak.

While there may be individual exceptions — such as when the blogger also served as the source for the article — it’s generally hard for people to argue they made fair use of material when they have copied the entire work, says Kim Isbell, a staff attorney with the Citizen Media Law Project.

Still, even if some defendants won’t get far arguing fair use, they might have other defenses, says Isbell. Some of the bloggers reside in states other than Nevada, in which case they might be able to prevail. “The non-Nevada defendants have a decent argument that the court has no personal jurisdiction over them,” she says.

Additionally, some publishers were sued based on posts made by users. The Digital Millennium Copyright Act generally provides that Web sites are immune from liability of they remove infringing material upon request, but only if they have complied with certain technical requirements, including registering a designated agent with the U.S. Copyright Office. Even if the site owners haven’t done so, they wouldn’t necessarily be liable for a user’s post unless they actively encouraged infringement, according to Isbell.

Iranian bloggers at great risk in using Internet

donal brown — Thu, 10 Jun 2010 18:33:56 +0000

In the last year since the protests over the Iranian election, the government has arrested 170 bloggers and journalists with 22 receiving prison sentences totaling more than 135 years. Authoritarian governments are sharing technology aimed at stifling dissent and in the last two years have increased their effectiveness in silencing critics. -db

Voice of America
June 9, 2010
By William Ide

WASHINGTON, D.C. – Following last year’s hotly contested elections in Iran, the Internet, social networking sites, blogs and cellphones were an empowering tool in the hand of opposition forces and everyday citizens. One year later, the same technologies are not only being used to silence the Iranian government’s critics and dissent, they are helping to create an environment that analysts and bloggers say is more dangerous and severe.

Iranian journalist and blogger Omid Memarian says the pictures and videos that were posted online last year showing protesters taking to the streets and authorities crushing dissent gave the world a rare glimpse of Iran’s leadership.

“I think that the most important thing that has happened after the Iranian elections is that the image that we have of the Islamic Republic of Iran, the image that we have from Iranian authorities, we have seen how brutal they can be, and how they can be harsh against their critics,” said Omid Memarian.

The international media group Reporters Without Borders says during the past year, at least 170 journalists and bloggers have been arrested in Iran, and 22 have been sentenced to jail terms totaling more than 135 years.

Memarian says it has become riskier than ever in Iran to write and criticize the government.

“They have filtered the Internet,” he said. “They have even sentenced those who have sent text messages to their friends. So, they have tried to dominate the narrative and block the flow of information and, to some extent, they have been successful.”

The deputy director of programs at the U.S.-based rights group Freedom House, Daniel Calingaert, says while videos and photographs of events on the streets of Iran are still getting on the World Wide Web, activists are being more careful about how they use the Internet.

“If you look back a year, activists and ordinary citizens were very open about what they would say on the Internet and how they would exchange information,” said Daniel Calingaert. “And in the meantime, the Iranian regime has become a lot more sophisticated with surveillance, with intercepting e-mail communications. In many cases, we know that when activists are arrested or detained, one of the first things that they are asked is their e-mail password.”

Calingaert adds authorities use the passwords to look at the activists’ contacts and communications. Authorities are also using photographs posted on the Internet to identify protesters and round them up.

“It is tougher and it is a lot more dangerous,” he said. “The regime has been very brutal toward activists in person. There are several who have been executed even. But, at the same time, the Internet is still a lifeline for information both, to stay in touch, for activists outside to stay in touch with fellow activists inside, and for people inside to tell people outside what is going on.”

Stanford University Center on Democracy, Development, and the Rule of Law Director Larry Diamond says in past two years states like Iran and China have started to use technology more effectively than their critics.

“Authoritarian regimes have probably made more progress in suppressing, surveilling, controlling and manipulating, the use of the Internet and related digital technologies than democratic and civil society forces have made progress in utilizing them to advance freedom,” said Larry Diamond.

Diamond says that part of the reason is that authoritarian countries are working together to silence dissent.

“We have growing evidence [authoritarian regimes] are actively sharing their methods and techniques and transferring software and technical skills across boundaries that promote authoritarian censorship of the Internet, including Internet filtration systems,” he said.

Earlier this year, the U.S. State Department launched an effort to promote Internet freedom around the world. A key goal is to give Internet users tools to help them get around government controls and have freer access to the Web.

The Freedom House’s Calingaert says such efforts to bypass filtering are important and helpful, but they should not be a substitute for traditional human-rights efforts by Washington.

“If you look at the case of Egypt for instance, there is very little filtering,” said Calingaert. “I mean the Internet has pretty much anything anyone wants to say is there. But the most high-profile bloggers are in jail, and that sends a pretty clear message to other bloggers who want to be critical about the regime. Anti-censorship tools are not going to solve that problem.”

Diamond says the online clashes between authoritarian governments and dissidents involve very complex battles, and the skill and resolve on each side is constantly evolving, making it difficult to predict the ultimate outcome.

“I think that eventually these technologies will outrun the capacities of authoritarian regimes to manage them and will be a net plus in terms of the expansion of freedom and the promotion of democracy in authoritarian countries around the world,” said Diamond.

Iranian journalist and blogger Omid Memarian agrees that eventually Tehran’s monopoly over the media and information will be broken, even though fighting the government comes at a very high price. And once it is, he is optimistic that changes will come quickly.

Police action in invading editor’s house in Gizmodo iPhone case said in conflict with California law

donal brown — Tue, 27 Apr 2010 21:08:44 +0000

A director at the Citizen Media Law Project at Harvard says that in seizing a Gizmodo editor’s computers, the police most likely violated the state’s shield law.-db

Citizen Media Law Project
Commentary
April 26, 2010
By Sam Bayard

Gizmodo announced this afternoon that California police seized computers and servers from the home of its reporter/editor Jason Chen on Friday night. They’ve posted the search warrant, Gawker C.O.O. Gaby Darbyshire’s letter to the police disputing the legality of the seizure, and Chen’s first-hand account of what happened. I would like to see the government’s response to Darbyshire’s letter before weighing in definitively, but it looks like the search warrant was invalid under California Penal Code § 1524(g).

Detective Matthew Broad of the San Mateo Sheriff’s Office obtained the warrant as part of the “iPhone 4″ investigation. Although Gizmodo returned the next generation iPhone to Apple last week, authorities are mulling criminal charges against the finder of the phone, Gizmodo/Chen, or both. My previous postmissed an important detail of California criminal law that makes the question of criminal responsibility very much a live question: § 485 of the California Penal Code. It says that

[o]ne who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

So it turns out maybe Apple wasn’t playing mind tricks when it said it considered the iPhone prototype stolen. Selling the phone to a news organization for $5000 might well qualify as “appropriat[ing] such property to his own use, or to the use of another person not entitled thereto.” This opens up problems for the original finder of the phone, unless he/she used “reasonable and just efforts” to return the phone. Plus, now Gizmodo/Chen have to worry about § 496 of the California Penal Code, which makes it a crime to “receive[] any property that . . . has been obtained in any manner constituting theft . . ., knowing the property to be so . . . obtained.” Of course, Gizmodo still has a good argument that it didn’t know the iPhone was wrongfully obtained until Apple acknowledged its authenticity.

But this all goes to the merits of criminal charges that the authorities might or might not ultimately pursue. The big news right now is the seizure of Chen’s computers, and this issue needs to be analyzed separately from the issue of whether or not any underlying crime might have been committed.

As Darbyshire points out in her letter to Detective Broad, § 1524(g) of the California Penal Code says: “No warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” California Evidence Code § 1070 is one of the operative provisions of the California shield law. It says that a person “connected with or employed upon a newspaper, magazine, or other periodical publication” cannot be held in contempt for failing to disclose the identity of a source or unpublished information obtained in the course of newsgathering. The search warrant pretty clearly targets unpublished information of this sort and the identity of Chen’s source.

Gawker’s chief Nick Denton tweeted this afternoon, saying that the case raises the issue of whether “bloggers count as journalists.” Ordinarily, Denton would be quite right, but in California there is relatively clear precedent that online journalists like Chen are covered by the shield law. In O’Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appeals court held that Apple could not get the identities of confidential sources from the publishers of “O’Grady’s Power Page” and “Apple Insider,” two sites devoted to covering stories about Apple products. While the court acknowledged that not all bloggers would qualify under the shield law, it explained that characteristics like frequency of publication, permanency of web address, and number of visitors per month made the two sites in question akin to a newspaper or “other periodical publication.” Certainly, Gizmodo outstrips the two sites in O’Grady when it comes to these same characteristics.

So the shield law almost certainly applies to Chen, and § 1524(g) forbids search warrants for materials covered by the shield law. Ergo, the police likely violated California law. (Not to mention a potential issue under the federal Privacy Protection Act; but here it looks like the search might fit an exception.) The only potential issue I see under California law is whether § 1524(g)’s prohibition is subject to an exception where the journalist himself/herself is alleged to have committed a crime. This seems unlikely based on the plain language of the statute, and my preliminary research uncovered no cases saying any exception exists, but I suppose it’s not outside the realm of possibility.

We’ll be watching this one closely.

New York City considers press credentials for bloggers

donal brown — Thu, 04 Mar 2010 05:02:05 +0000

Mayor Michael Bloomberg wants to allow online journalists and bloggers press credentials. The proposal comes in the wake of a lawsuit filed by three bloggers denied access to city events. -db

The Reporters Committee for Freedom of the Press
March 3, 2010
By Christine Beckett

New York City and Mayor Michael Bloomberg announced a new policy that would allow online journalists and bloggers to more easily obtain a press credential, The New York Observer reported.

The proposal is the city’s response to a lawsuit filed by three bloggers who were denied press access to city proceedings. The rule would grant a two-year press credential to bloggers or online journalists who could showing they had covered at least “six news events where the City has restricted access” in the previous two years.

The proposal is now open for comment until a public hearing is held on April 7 at police headquarters in lower Manhattan.

Opinion: Time for bloggers to gain protections afforded traditional media

donal brown — Tue, 02 Mar 2010 17:33:09 +0000

With more of the public gaining their news from online sources rather than print media and using the social media to become more interactive and participatory in accessing the news, a CMLP blogger argues that bloggers should be entitled to the same protection as mainstream press. -db

Citizen Media Law Project
Commentary
March 1, 2010
By Andrew Moshirnia

Well, it turns out this whole Internet thing is getting pretty popular. According to the Pew Internet and American Life Project, more Americans now get their news from the Internet than from old-fashioned newspapers. While this might just mean that consumers are reading mainstream media content online rather than in print, the Pew report also suggests that social media has its own significant role:

The rise of the internet as a news platform has been an integral part of these changes. This report discusses two significant technological trends that have influence[d] news consumption behavior: First, the advent of social media like social networking sites and blogs has helped the news become a social experience in fresh ways for consumers. People use their social networks and social networking technology to filter, assess, and react to news. Second, the ascent of mobile connectivity via smart phones has turned news gathering and news awareness into an anytime, anywhere affair for a segment of avid news watchers. (Source)To be sure, it’s not as if we’ve become a nation of citizen journalists. The report summary makes clear that, unsurprisingly, for most Americans “[p]articipation comes more through sharing than through contributing news themselves.”

Still, it strikes me that the Pew findings provide additional support for the argument that bloggers and other non-traditional and amateur journalists should get the same legal protections as the mainstream press, at least when they carry out clearly journalistic functions. Where this issue most commonly comes up is in the area of state and federal shield laws.

Shield laws allow journalists to refuse to testify as to the information or sources of information they encounter during the newsgathering process. While many states have shield laws, a federal shield law is still sitting in Congress.

The House version of the bill, adopted in April 2009, excludes many bloggers from its protection, limiting the shield to those who gather or report news “for a substantial portion of the person’s livelihood or for substantial financial gain.” The Senate version has oscillated, with amateurs getting cutin September 2009 and added back in November in a version that looks to the function of disseminating news to the public rather than pay status. (When the bill passed out of the Senate judiciary committee in December, there was an abortive attempt to take non-professionals out again, but it failed.)

While this congressional yo-yoing has continued (when will it pass, who will it cover), the need for a shield law that includes non-professional bloggers has been made abundantly clear. A little while ago, I wrote about the TSA’s harassment of two bloggers who dared to post a clearly non-confidential memo on airport screening security directives.

The argument against extending a shield law to bloggers seems to be rooted in silly notions of traditionalism: the law should apply only to salaried newspapermen because only those individuals are our trusted news gatherers. Supporters of an expansive shield law have instead had to rely on common sense (always a poor position to occupy when it comes to political debate): Congress should “focus on the function carried out by the individual in question, rather than occupational status.”

But lo, now those of us who value bloggers’ rights can now fight fire with fire. Let the numbers recitation begin!

Six in ten Americans (59%) get news from a combination of online and offline sources on a typical day, and the internet is now the third most popular news platform, behind local television news and national television news. . . . Some 37% of internet users have contributed to the creation of news, commentary about it, or dissemination of news via social media. They have done at least one of the following: commenting on a news story (25%); posting a link on a social networking site (17%); tagging content (11%), creating their own original news material or opinion piece (9%), or Tweeting about news (3%). (Source)

The Internet is where individuals go to learn the news, be it about their social circle, their local municipality, or the wider world. Even if you want to take a narrow, instrumentalist view, bloggers, amateurs and non-traditional journalists still deserve a seat at the adults’ table. There is plenty of room for everyone, so tweet grace and pass the legal protection.

Andrew Moshirnia is a second year law student at Harvard Law School.

Bloggers replace mainstream media in covering local government

donal brown — Tue, 19 Jan 2010 01:03:07 +0000

Bloggers using Twitter and Facebook are filling the void to cover local government meetings, taking the place of mainstream media suffering losses of revenue as the internet takes its share of ads. -DB

MediaShift
January 14, 201
By Steven Davy

Traditionally, newspaper reporters were dispatched to cover the mundane proceedings of a local government in action: the city council meeting. But as the mainstream media grapples with its survival in the Internet era, the seats in the audience once occupied by full-time reporters are sometimes being filled by local bloggers and other citizen media outfits.

They’re using blogs and social media technologies like Twitter and Facebook to spread the word about important decisions, or to inspire action within their communities.

“It’s the time for the group formerly known as the readers to come out and do our part,” said Chuck Welch, the editor of Lakeland Local, a citizen journalism site in Lakeland, Fla.

Welch is a former journalist at a local weekly in Louisville who’s now a stay-at-home dad. He created Lakeland Local after his wife took a job in Lakeland and the family relocated. Welch wanted to get to know his new city, and soon grew dissatisfied with how the local newspaper, the Ledger (owned by The New York Times Co.), was covering a big story in the area.

“I thought the only way I could ensure that the story was being covered the way I wanted was just to go do it myself,” Welch said.

MOBILIZING THE COMMUNITY

Paul Roberts, editor of the site Blogging Belmont in Belmont, Mass., has also stepped up to cover and mobilize his community. He recently used Facebook and Twitter in tandem with his blog to get people to the polls in support of a debt exclusion school funding measure.

“[The voter drive] got us some media attention, which was helpful in creating awareness about what was happening,” Roberts said. “The exclusion passed by a wide margin. I don’t think the social networking piece was decisive, but they are powerful tools.”

Roberts, like Welch, is a former journalist. He currently works at a technology analyst firm, and was recently elected to serve as a school committee member. He created Blogging Belmont to establish a source of real-time information about everything that’s going on in the Belmont political sphere, and as a resource for a community where the local media is comprised of a single two-person newspaper.

Roberts said he would like to integrate technologies with Blogging Belmont that allow visitors to the site to use their Facebook or Twitter account to log-in, making it easier to participate.

“There is a huge amount of potential there, but as of yet, my integration between the blog and other media are pretty loose,” Roberts said. “I talk to a lot of folks that are pretty frequent readers of the blog and they are still trying to wrap their brain around what Twitter is and why it exists. So I’m not sure the urgent need is there to build the bridges to Facebook and Twitter as it might be if my audience was different.”

POLITICAL LEADERS TAKING NOTICE

Technology is making citizen journalism easier, but of course there is currently little, if any, money in covering local government. Without any financial incentive, how do you get the average citizen to spend their time live blogging or sending out tweets during a public meeting? And unlike the inclination to tweet about an accident on the highway, school board and city council meetings just aren’t that sexy, despite their importance.

“I think that it is good for a democracy, but the trouble is that it is an awful waste of time and there’s not a whole lot of ways to pay for it,” said Tommy Duncan, a Tampa, Fla. blogger and editor of Sticks of Fire. “Live blogging would probably be helpful in many cases, but I don’t know if it can be justified financially.”

There is some reward in the fact that politicians are beginning to notice the presence of local bloggers. Cincinnati Councilman Chris Bortz said citizen journalists can offer communities additional access to political leaders.

“I know a few of the bloggers fairly well and it’s nice because it is a good source for me as well,” Bortz said. “If I feel like I’d like to get something out and maybe it’s too difficult to get in the local paper, I can often email the bloggers and ask them if I can post a guest blog, and they are often eager to do it.”

Perhaps the biggest potential for citizen journalists who are focused on local government is the interactivity promised by Twitter or Facebook. They can receive instant feedback and encouragement from readers and fellow citizens.

“I’ve gotten questions from the readers because they might have more experience or they might have an insight that I didn’t have,” Chuck Welch said. “In the past it was thought that a story had to be completely finished before you printed it in the newspaper. Today you put the information out there and you update and add to it as you learn more. News is a process. You put it out there and let the audience help you build on it. It’s more fun to work back and forth with the readers.”

He said the end result is that local government officials know they’re still being held accountable.

“I think there are cases now where city council or city staff might be more cognizant that just because the newspaper reporter is not in the room it doesn’t mean the community is not going to learn about whatever it is they are doing,” Welch said.

Steven Davy is a freelance journalist, and freelance radio reporter/producer.

2009 a bad year for free speech online

donal brown — Tue, 12 Jan 2010 19:59:35 +0000

2009 was not a good year for free speech online as China and Iraq set a dismal standard. Even democratic countries considered ways to censor online expression. -DB

MediaShift
January 11, 2010
By Clothilde Le Coz

2009 was an unprecedented year for online repression.

For the first time since the Internet emerged as a tool for public use, there are currently 100 bloggers and cyber-dissidents imprisoned worldwide as a result of posting their opinions online in 2009, according to Reporters Without Borders. This figure is indicative of the severity of the crackdowns being carried out in roughly 10 countries around the world. (In one example, Burma handed out long prison sentences to online dissidents.)

The number of countries pursuing online censorship doubled in the past year — a disturbing trend that suggests governments seek to increase their control over new media. In total, 151 bloggers and cyber-dissidents were arrested in 2009, and 61 were physically assaulted.

The crackdown on bloggers and ordinary citizens who express themselves online comes at the same time that social networking and interactive websites have become extremely popular, not to mention powerful vehicles for free expression.

CHINA STILL LEADS IN ONLINE CENSORSHIP

China was once again the leading Internet censor in 2009. Countries such as Iran, Tunisia, Thailand, Saudi Arabia, Vietnam and Uzbekistan also blocked websites and blogs, and engaged in surveillance of online expression. In Turkmenistan, for example, the Internet remains under total state control. Egyptian blogger Kareem Amer is still in jail, while the famous Burmese comedian Zarganar still has 34 years left on his prison sentence. These are but a few examples.

The list of approximately 120 victims of Internet censorship in 2009 also includes leading figures in the defense of online free speech, such as China’s Hu Jia and Liu Xiaobo, and Vietnam’s Nguyen Trung and Dieu Cay.

People are usually targeted because they speak out on political matters, but the global financial crisis is also on the list of subjects likely to provoke online censorship. In South Korea, a blogger was wrongfully detained for commenting on the country’s disastrous economic situation. Roughly six people in Thailand were arrested or harassed just for making a connection between the king’s health and a fall in the Bangkok stock exchange. Censorship was slapped on media in Dubai when it came time for them to report on the country’s debt repayment problems.

Overall, wars and elections constituted the chief threats to journalists and bloggers in 2009. It is becoming more risky to cover wars because journalists themselves are being targeted for murder and kidnappings. It’s also just as dangerous for reporters in some countries to do their job at election time. Journalists have ended up in prison or in a hospital thanks to their election reporting. Violence before and after elections was particularly prevalent in 2009 inside countries with poor democratic credentials.

IRAN ELECTION CRACKDOWN

Iran saw the most violence, censorship and arrests due to an election. Its elections this past summer saw more than 100 arrests, and many prison sentences handed down. The country, which is on the Reporters Without Borders list of “Enemies of the Internet,” has also deployed a sophisticated system of Internet filtering and monitoring, especially in recent months. The country’s main ISPs depend on the Telecommunication Company of Iran, which recently came under control of the Revolutionary Guard, and does not hesitate to flout international treaties or to restrict the free flow of information.

Within hours of the announcement of President Mahmoud Ahmadinedjad’s election “victory,” journalists were being arrested by the intelligence ministry, Revolutionary Guard, and other security services. Most were taken to Tehran’s Evin prison. At least 100 journalists and bloggers have been arrested since June, and 27 are still being held. Today, Iran is one of the world’s five biggest imprisoners of journalists.

Since the election, national and international media in Iran have been subject to massive and systematic censorship that is without precedent. For the first time since the 1979 revolution, the security services are vetting the content of newspapers before they’re published.

The Iranian regime’s offensive against online free expression took a new direction in December after Tehran prosecutor Abbas Jafari Dowlatabadi announced he was going toprosecute two conservative websites for “insulting” Mahmoud Ahmadinejad.

Meanwhile, several Internet service providers cut access to prevent political opponents from disseminating information during opposition demonstrations on December 27. After the demonstrations, the intelligence ministry and Revolutionary Guard began rounding up government opponents and journalists, arresting an estimated 20 people in the latest wave. Those targeted included a dozen or so journalists and cyber-dissidents. Alireza Behshtipour Shirazi, the editor of Kaleme.org (opposition leader Mirhossein Moussavi’s official website), was arrested at his Tehran home and taken to an unknown place of detention.

TROUBLE IN DEMOCRATIC COUNTRIES

Democratic countries have also enacted online censorship. Several European nations are working on new steps to control the Internet in what they say is a campaign against child porn and illegal downloads. Australia is also planning to set up a compulsory filtering system that poses a threat to freedom of expression.

Communications minister Stephen Conroy announced in December that, after a year of testing in partnership with Australian Internet service providers, the government will introduce legislation imposing mandatory filtering of websites with pornographic, pedophilic or particularly violent content.

Google Australia’s head of policy, Iarla Flynn, raised concerns, saying, “Moving to a mandatory ISP filtering regime with a scope that goes well beyond such material is heavy-handed and can raise genuine questions about restrictions on access to information.” In a Fairfax Media poll of 20,000 Australians, 96 percent strongly opposed a mandatory Internet filtering system.

Yet that proposal — as well as many others around the world — continues to move ahead. Hopefully, 2010 will be a better year for free speech online.

Clothilde Le Coz is the Washington director for Reporters Without Borders.

Law student chides TSA for violating blogger’s rights

donal brown — Mon, 04 Jan 2010 21:03:57 +0000

A Citizen Media Law Project blogger says the recent attempt of the Transportation Security Administration to serve citizen bloggers with subpoenas after the bloggers published new airport security directives shows that the agency needs judicial checks and its power to subpoena stripped. -DB

Citizen Media Law Project
January 4, 2010
By Andrew Moshirnia

In recent years, the American public seems to have fallen under the impression that providers and regulators of airline travel have extra-legal powers. These fictional powers typically mean that passengers can be treated like cattle. The evidence for this is legion. My favorite aviation abuse motif is the plane stranded on the tarmac, passengers forbidden to leave, babies crying, etc. (For a good idea of how this sort of false imprisonment impacts passengers, view South Park’s helpful reenactment.) So I think we are all used to stories of the TSA’s ham-fisted ineptitude. But the TSA’s latest misstep, the intimidation and harassment of bloggers, stands out in the Pantheon of Unacceptable and so deserves special attention.

Brief rundown: Somehow a passenger managed to get on a plane with explosives sewn into his clothing. Thankfully, his attempted detonation fizzled. In the aftermath, the TSA sent out a document to essentially every airline and screener outlining heightened security screening measures (read: more pat downs). The document was not classified. On December 27th two bloggers, Steven Frischling andChristopher Elliott, posted and commented on these new security directives.

Then the TSA lost its mind and subpoenaed the bloggers on December 29th, hoping to find the source of the “leak” and stifle further discussion of its super-secret, ultra-effective policies.

Frischling complied with the subpoena, in part because he did not know the identity of the source, there is no federal shield law to protect him, and he felt that he could lessen the ordeal by cooperating. According to Wired, agents went through his phone contacts and determined it was necessary to take an image of his hard drive. However, it seems that in this process they broke Frischling’s laptop. With Frischling’s permission, they seized the computer and then departed.
Elliott refused to divulge his source and quickly retained counsel. Then the TSA immediately backed off, admitted no wrongdoing, and decided that its subpoena was “no longer necessary.” Oh, and then the agency told Frischling that he was no longer in trouble; though it is not obvious what charges they could have brought anyway.

Where to begin?

First off, just as it’s important to remember that the TSA is not a breed of legal superman, let us also remember that bloggers (contrary to public belief) are members of the free press. Bloggers are not made legal sub-humans merely because they may host ads for lolcats or PEN 15 enlargement pills. Neither blog under issue has such ads, but again, there should be no legal differentiation between classy and vulgar news outlets. So with that in mind, would the TSA have ever tried this stunt with the “legitimate press?” I’m guessing that there is zero chance they would bother the New York Times.

A policy impacting the entire class of airline travelers (during the busiest week of the travel season no less) is certainly newsworthy. With the TSA occupying the cone of silence, travelers naturally sought out some source of information for basic travel questions: How many bags may I take on? Will I be allowed to use the restroom during the flight? Can I bring on any electronics at all?

Second, it is not obvious if either blogger did anything wrong or if there was any leak worth investigating. The document was not classified and was widely distributed to an industry comprising thousands of individuals. Surely the TSA did not expect its document to remain secret for very long. Furthermore, the directives were put in place immediately and so many passengers began experiencing the extra security procedures first hand. Without doubt, at least some of these travelers are going togripe on their blogs or simply tell their loved ones to expect long lines because of the aforementioned security measures. Perhaps some intrepid reporters would buy plane tickets and (wait for it) report on their experiences.

Third, it seems to me that the TSA was trying to save face by pushing an absurdly flimsy subpoena on some bloggers because just a few weeks ago someone leaked the entire TSA Security Manual. This was a smidge more serious because A) it detailed procedures that the average passenger would not inevitably discover and B) each page clearly stated that this information was to be shared only to persons with a need to know. How did that leak take place? According to a CBS report, the TSA says it was “improperly posted” by the agency to a government jobs site with redactions, but the redactions were merely black text boxes added to a PDF. A few clicks and presto-changeo the text became legible. Good one. Let’s all give the TSA a slow clap.

So to sum up: Though the law does give the TSA power to collect information, 49 U.S.C. § 46104, that does not strip citizens of their rights. TSA abused its power to subpoena in order to bully, then turned tail when at least one blogger decided to test the legal waters. This brings two possible solutions to mind:

Strip the TSA of the power to subpoena and reintroduce greater judicial oversight to the whole process. But this is a political impossibility because no one wants to be on the hook when the next attack occurs. Incidentally, I’m shocked that there has not been a larger push to link the nearly successful Christmas attack with the almost certainly unrelated prior leak of the TSA security manual. Anonymous leaks make excellent scapegoats.

Pass the federal media shield law ASAP and be sure to include bloggers. If bloggers serve the same purpose as other news gatherers, it stands to reason that bloggers should receive the same protections. While the latest version of the bill features a balancing test that might easily be tilted in favor of the government (if law were a card game, terrorism would always trump), at least its better than nothing.

A CMLP reader submitted a database entry for this case that we’ve brushed up and published. You can consult TSA v. Chris Elliott and Steve Frischling for details and links to other coverage.

Women’s group sues Google for bloggers’ defamation

donal brown — Thu, 31 Dec 2009 23:08:13 +0000

The National Association of Professional Women is suing Google and three other Web sites for publishing bloggers’ statements that say the organization is a scam. -DB

Courthouse News Service
December 31, 2009
By Barbara Leonard

MINEOLA, N.Y. – The National Association of Professional Women claims Google and three other Web sites defamed it by allowing bloggers to publish defamatory statements that call the organization a “scam.”

The NAPW says Google hosts at least four blogs that called the group a “scam,” and call NAPW president Matthew Brian Proman a “scam artist.”

The bloggers also accused the group of being “not professional” and say it “hurts other women,” according to the complaints in Nassau County Court.

NAPW says the East Cooper Entrepreneurial Women, a competing organization for female entrepreneurs, made similar statements on its Web site and blog.

It claims Mark Schultz dba Complaintsboard.com published statements calling the association a “fraud” that uses “deceptive recruitment.” And it claims that that site also used the association’s name for advertising.

Associated Content allegedly published an article that accuses NAPW of being a “no-benefit scam” that is “designed to target women.”

Because Associated Content uses pay-per-click advertising, it profits from Internet users who search for NAPW or its president and are linked to the defamatory article, according to the complaint.

The NAPW seeks exemplary damages, an injunction ordering the Web sites to remove the defamatory posts and advertising, and the identities of the people who published the defamatory posts.

It is represented by Michelle Gellman with Fischetti & Pesce of Garden City, N.Y.

TSA puts heat on blogger posting new screening procedures

donal brown — Thu, 31 Dec 2009 11:20:04 +0000

Armed agents from the Transportation Security Administration visited two bloggers in their homes with subpoenas, seeking the identity of the source who provided a document revising screening procedures for airports after the recent aborted bombing attempt by a Nigerian man. -DB

Wired

Threat Level
December 30, 2009
By Kim Zetter

Two bloggers received home visits from Transportation Security Administration agents Tuesday after they published a new TSA directive that revises screening procedures and puts new restrictions on passengers in the wake of a recent bombing attempt by the so-called underwear bomber.

Special agents from the TSA’s Office of Inspection interrogated two U.S. bloggers, one of them an established travel columnist, and served them each with a civil subpoena demanding information on the anonymous source that provided the TSA document.

The document, which the two bloggers published within minutes of each other Dec. 27, was sent by TSA to airlines and airports around the world and described temporary new requirements for screening passengers through Dec. 30, including conducting “pat-downs” of legs and torsos. The document, which was not classified, was posted by numerous bloggers. Information from it was also published on some airline websites.

“They’re saying it’s a security document but it was sent to every airport and airline,” says Steven Frischling, one of the bloggers. “It was sent to Islamabad, to Riyadh and to Nigeria. So they’re looking for information about a security document sent to 10,000-plus people internationally. You can’t have a right to expect privacy after that.”

Transportation Security Administration spokeswoman Suzanne Trevino said in a statement that security directives “are not for public disclosure.”

“TSA’s Office of Inspections is currently investigating how the recent Security Directives were acquired and published by parties who should not have been privy to this information,” the statement said.

Frischling, a freelance travel writer and photographer in Connecticut who writes a blog for the KLM Royal Dutch Airlines, said the two agents who visited him arrived around 7 p.m. Tuesday, were armed and threatened him with a criminal search warrant if he didn’t provide the name of his source. They also threatened to get him fired from his KLM job and indicated they could get him designated a security risk, which would make it difficult for him to travel and do his job.

“They were indicating there would be significant ramifications if I didn’t cooperate,” said Frischling, who was home alone with his three children when the agents arrived. “It’s not hard to intimidate someone when they’re holding a 3-year-old [child] in their hands. My wife works at night. I go to jail, and my kids are here with nobody.”

Frischling, who described some of the details of the visit on his personal blog, told Threat Level that the two agents drove to his house in Connecticut from DHS offices in Massachusetts and New Jersey and didn’t mention a subpoena until an hour into their visit.

“They came to the door and immediately were asking, ‘Who gave you this document?, Why did you publish the document?’ and ‘I don’t think you know how much trouble you’re in.’ It was very much a hardball tactic,” he says.

When they pulled a subpoena from their briefcase and told him he was legally required to provide the information they requested, he said he needed to contact a lawyer. The agents said they’d sit outside his house until he gave them the information they wanted.

Frischling says he received the document anonymously from someone using a Gmail account and determined, after speaking with an attorney, that he might as well cooperate with the agents since he had little information about the source and there was no federal shield law to protect him.

The Gmail address consisted of the name “Mike,” followed by random numbers and letters. Frischling had already deleted the e-mail after publishing the document but said he had learned from previous correspondence with the source that he had been hired as a screener for the TSA in 2009.

The agents searched through Frischling’s BlackBerry and iPhone and questioned him about a number of phone numbers and messages in the devices. One number listed in his phone under “ICEMOM” was a quick dial to his mother, in case of emergency. The agents misunderstood the acronym and became suspicious that it was code for his anonymous source and asked if his source worked for ICE — the U.S. Immigration and Customs Enforcement.

The agents then said they wanted to take an image of his hard drive. Frischling said they had to go to WalMart to buy a hard drive, but when they returned were unable to get it to work. Frischling said the keyboard on his laptop was no longer working after they tried to copy his files. The agents left around 11 p.m. but came back Wednesday morning and, with Frischling’s consent, seized his laptop, which they promised to return after copying the hard drive.

Frischling wrote on his blog that he decided to publish the TSA directive to clear up much of the confusion and speculation that was circulating among the public about changes that were being instituted in airport security procedures after a passenger unsuccessfully tried to ignite a bomb Dec. 25 using a syringe and explosive chemicals hidden in his underwear.

“We are a free society, knowledge is power and informing the masses allows for public conversation and collective understanding,” Frischling wrote on his blog. “You can agree or disagree, but you need information to know if you want to agree or disagree. My goal is to inform and help people better understand what is happening, as well as allow them to form their own opinions.”

A former federal prosecutor who asked not to be identified told Threat Level that the TSA is being heavy-handed in how it’s handling the matter.

“It strikes me that someone at TSA is apoplectic that somehow there’s a sense that they’re not doing their job right,” he told Threat level. “To go into this one reporter’s house and copy his computer files and threaten him, it strikes me that they’re more aggressive with this reporter than with the guy who got on this flight.”

Christopher Elliott, who is based in Florida and writes a column for the Washington Post, MSNBC and others, received a visit from a TSA special agent named Robert Flaherty around 6:30 p.m. Tuesday.

Elliott wouldn’t discuss the details of the visit with Threat Level, due to pending legal issues, but he describes in his blog post how he got a knock on his door shortly after finishing dinner and putting his three young children in the bathtub.

Flaherty showed him a badge and said he wanted information about the source of the document he published. When Elliott told him he’d need to see a subpoena, Flaherty pulled one out and handed it to Elliott.

Elliott told Threat Level they talked for 10 to 20 minutes, but he refused to cooperate. Flaherty left but called Wednesday to remind Elliott that he had until the end of the business day to comply with the subpoena.

“I really don’t think they thought this one through,” said Elliott about the TSA tactics.

Elliott could face a fine and up to a year in jail for failure to comply, according to a statement on the subpoena.

The TSA directive was issued Christmas Day, the date of the attempted attack on Northwest Flight 253, and indicates that the directive will expire Dec. 30. The directive applies to anyone operating a scheduled or charter flight departing from a foreign location and destined for the United States.

It requires all passengers to undergo a “thorough pat-down,” which should concentrate on their upper legs and torso, at the boarding gate. It also requires physical inspection of all “accessible property” accompanying passengers at the boarding gate, “with focus on syringes being transported along with powders and/or liquids.” It also indicates that restrictions against liquids, aerosols and gels should be strictly adhered to. Heads of state can be exempted from the special screening.

Passengers are also required to remain seated during the last hour of flights, and cannot access carry-on baggage or have blankets, pillows or other personal belongings on their lap during this time.

Aircraft phones, internet service, TV programming and global positioning systems are to be disabled prior to boarding and during all phases of flight. Flight crews are also prohibited from making any announcements to passengers about the flight path or the plane’s position over cities or landmarks.

The TSA was embarrassed earlier this month after a contract worker posted an improperly redactedsensitive screening manual on a government site.

That document revealed which passengers are more likely to be targeted for secondary screening, who is exempt from screening, TSA procedures for screening foreign dignitaries and CIA-escorted passengers, and extensive instructions for calibrating Siemens walk-through metal detectors.

Five TSA workers were put on leave pending an internal investigation into how that document got posted.

Federal shield bill for reporters passes major hurdle

donal brown — Fri, 11 Dec 2009 03:46:50 +0000

The Senate Judiciary Committee voted to send the federal media shield bill to the full Senate after months of debate and amendments. The contentious issue of whether bloggers and other citizen journalists will be covered by the bill has yet to be determined. -DB

Reporters Committee for Freedom of the Press
December 10, 2009
By Cristina Abello

The Senate Judiciary Committee today voted to present the federal media shield bill to the full Senate, a new milestone this year for legislation that has been tabled, debated and amended for months in the committee.

Although the Obama administration publicly supported the bill, a few senators from both parties expressed reservations about the legislation week after week. While this legislation was first introduced in February, another version reached the Senate floor last year but never received a final vote.

Today the committee today discussed one of the bill’s most contentious issues — defining who will be a covered journalist. Sens. Dianne Feinstein, D-Calif., and Dick Durbin, D-Ill., put forth a proposal to limit the definition to cover an employee of a media outlet (salaried or nonsalaried), exclude those who write anonymously and apply only to information disseminated through a “news medium” — a definition that would exclude some electronic media. But the amendment was rejected and the committee approved the bill with its previous definition of a journalist, which is a person who has the the intent to disseminate information to the public. Sponsors promised that they would continue to work with Feinstein and Durbin on the definition before the bill reaches the Senate floor, which is not expected soon.

Bill co-sponsor Sen. Charles Schumer, D-N.Y., vigorously defended the bill in its current state.

“The careful balance that we’ve chosen between the need to garner confidential information and the need to make sure that that confidential information doesn’t violate a vital national interest, is the way we need to go,” he said.

Several amendments were proposed and rejected, but the committee approved others, including additional exceptions to the privilege in order to prevent “incapacitation or destruction of critical infrastructure” and specific crimes against minors. Another accepted amendment slightly broadened the language about conditions for compelling the disclosure of information with regard to criminal cases.

Federal shield law moving forward in Senate after compromise forged with White House

donal brown — Mon, 02 Nov 2009 17:44:04 +0000

The federal journalist shield law cleared a major hurdle when the Obama administration cut a deal with the Senate to include freelancers and online journalists. The bill also includes a public-interest balance test so that a judge could weigh the public interest in secrecy against the public interest in disclosure. -DB

Reporters Committee for Freedom of the Press
October 30, 2009
By Ansley Schrimpf

Two senators announced Friday that the Obama administration has agreed to a deal that could allow plans for a federal journalist shield law to move forward next week.

Sens. Arlen Specter, D-Pa., and Charles Schumer, D-N.Y., announced that the new version of the Free Flow of Information Act will no longer only apply to “salaried employees” and independent contractors for established news organizations, but will cover freelancers and online journalists. The bill will also preserve a public-interest balancing test for criminal, civil and leak cases, meaning that a judge will be able to weight the public interest in confidentiality against the public interest served by compelled disclosure. The Senate Judiciary Committee is scheduled to mark up the revised bill on Thursday.

“The negotiated compromise creates a fair standard to protect the public interest, journalists, the news media, bloggers, prosecutors and litigants,” said Specter. “The news media kept up the pressure for years to produce this compromise for a major improvement over current procedures where journalists have been threatened, fined and jailed for appropriately protecting sources.”

Currently, no federal law shields reporters who refuse to disclose confidential sources even though 37 states and the District of Columbia have laws providing legal protection. The House passed a version of the shield law but the measure has until now stalled in the Senate.

The Senate Judiciary Committee debated the shield law bill in September, but several senators raised concerns about balancing the government’s need to know information with the reporter’s right to protect it. When Schumer introduced a new definition in September that would have excluded many bloggers and Internet journalists, the committee quickly adopted it. Now Schumer supports a broader definition that would provide protection for freelancers and those who write for the Internet, according to Specter’s release.

Lucy Dalglish, the executive director of the Reporters Committee, told the New York Times the deal is far from inked.“This is a huge deal, but it’s not a done deal, and quite honestly, until all of the media coalition members sign off on it, it’s not a deal,” she said. The Reporters Committee is among the media organizations that have worked to move the shield bill through Congress.

Specter credited White House negotiators with orchestrating the compromise.

The Obama administration hailed the president as the first commander-in-chief to support a federal media shield law and White House spokesman Ben LaBolt said he expects the measure to move forward with bipartisan support.

“We have been engaged with members of the Senate and the media to craft legislation that protects the confidentiality of reporters’ sources and gives the courts the power to decide whether the disclosure of such information is ever necessary in the interests of national security or other imperatives,” LaBolt said. “The President looks forward to signing it into law.”

Bloggers cut from senate shield law

donal brown — Tue, 29 Sep 2009 20:44:51 +0000

Under both House and Senate versions of the federal shield law, only employed journalists will be protected. A former Christian Science Monitor editor says the failure to include citizen journalists ignores the reality of the modern era and who provides accurate, up-to-date news. -DB

Citizen Media Law Project

Commentary
September 28, 2009
By Arthur Bright

For citizen journalists, the federal shield law front was looking good for a while. Although the House of Representatives version of the bill, passed in April, only offered a shield to professional bloggers, the Senate version didn’t differentiate between the pros and the amateurs. So there was hope that amateur journalists might actually, eventually, get its protection.

No longer though.

Sadly, the Senate Judiciary Committee has followed the path of the House and opted to specify that only a “salaried employee . . . or independent contractor” will be able to invoke the shield, reports the Wall Street Journal’s Digits blog. The amendment, offered by Sen. Chuck Schumer (D) of New York, limits the definition of a journalist to one who:

(iii) obtains the information sought while working as a salaried employee of, or independent contractor for, an entity—

(I) that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means; and

(II) that— (aa) publishes a newspaper, book, magazine, or other periodical;

(bb) operates a radio or television broadcast station, network, cable system, or satellite carrier, or a channel or programming service for any such station, network, system or carrier;

(cc) operates a programming service; or

(dd) operates a news agency or wire service . . .

This language is in fact more restrictive than its House counterpart, which only limits the shield to those who gather or disseminate news “for a substantial portion of [their] livelihood or for substantial financial gain.” The Judiciary Committee’s “salaried employee . . . or independent contractor” language on its own would be sufficient to deprive most non-traditional journalists of protection. But the requirement that the hosting entity both disseminate information by electronic means and operate a publishing, broadcasting, or news service of some kind ices it. It’s hard to imagine that many amateur bloggers (even those eking out enough money to pass the employee hurdle) would qualify as “a news agency.” Perhaps a blog dedicated to news and adhering to journalistic standards could be read to be “a news agency,” but I wouldn’t want to rely on a judge making such a reading.

Clearly, this is disappointing. Interestingly enough, it’s a bipartisan foreign policy think tank, the Partnership for a Secure America, that offers the most succinct summary I’ve read explaining why the shield law should cover amateur journalists. John Eden writes for the PSA’s blog:

In an era of instantaneous dissemination of information over the Internet by bloggers and other part-time pundits, it’s hard to see why the privilege should be limited to journalists who are getting paid to collect news. If what we care about is getting the most up-to-date, accurate information, why should it matter whether a blogger or a CNN reporter has delivered the news to us? Moreover, even if a meaningful distinction can be made between commercial and non-commercial journalists, in practice granting the privilege exclusively to commercial journalists is likely to spur costly, unnecessary disputes about who is or isn’t a bona fide journalist.

Amen. Of course, a cynical fellow might suggest that perhaps the Senate isn’t so concerned about people getting “the most up-to-date, accurate information.” But I think it’s far more likely that citizen journalists just aren’t on the radar of your average senator. In the media whirlwind that is Washington, the only media that a Beltway insider is apt to recognize is the big, powerful corporation. And blogs are just places that publish dirty little secrets or partisan ranting. The idea that unpaid bloggers can actually provide legitimate journalistic services is just an alien concept.

So, it looks like the feds aren’t going to come through, and citizen journalists will have to look to their own states and to the judiciary for shield law protections. Because the states have been better about passing shield laws generally, it might not be too much to hope that they’ll be better about applying them to unpaid journalists. Maybe they’ll even write bloggers in explicitly. But for now, citizen journalists will have to continue their efforts with considerable uncertainty about shield law protection.

Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern.

Environmental reporters in Egypt and China face devastating reprisals

donal brown — Thu, 17 Sep 2009 21:03:15 +0000

It is not an easy life reporting about the environment in Egypt and China as the reporters face fines, law suits, censorship, death threats and prison. -DB

MediaShift
September 14, 2009
By Clothilde Le Coz

Since May 2009, Tamer Mabrouk has held one of the saddest records regarding human rights abuses in Egypt. He is the first blogger to receive a fine after a company sued him for having criticized its activities in Lake Manzala, which is connected to the Suez Canal. Mabrouk was fined $8,700, lost his job, and was forced to move out of Port Said where he had been leaving for years.

Mabrouk’s offense was that he blogged about the pollution the Trust Chemicals Company was dumping into Manzala Lake. Perhaps because they were afraid — or corrupt — the local authorities did not investigate the issue after Mabrouk brought it to light. So, with a few clicks, he decided to publish pictures proving the detrimental effect of the Trust Chemicals Company. In June 2008, the company sued him for defamation.

“I tried to sue the company myself to ask for its closure,” Mabrouk said in a video posted on YouTube. “But the local court argued it did not have the jurisdiction to decide on that matter. Meanwhile, the Trust Chemicals Company was offering me money in return for my silence. I turned it down. Now, they want me to publish a denial.”

(You can read more about Mabrouk’s case at the Reporters Without Borders site.)

ENVIRONMENTAL WRITERS LOCKED UP

Mabrouk is by no means the only person to suffer for reporting about environmental disasters. Reporters in different parts of the world deal with fines, jail and threats as a result of their work.

In China, for example, environmental activists often face repression after they gain the attention of international media. In July 2009, the anti-nuclear activist Sun Xiaodi and his daughter were sentenced to two years in a labor camp for “divulging state secrets abroad” and “publishing rumors.” Their crime? Publishing information online about the contamination of inhabitants of Gansu Province, which was caused by a Uranium 792 mine. Sun Xiaodi also published articles on corrupt officials of the Diebu district. For more than 20 years, Sun Xiaodi, a former worker in the Uranium 792 mine, has been fighting to raise awareness about the contamination.

Another environmental activist, Wu Lihong, received a three-year prison sentence for warning Chinese and international media about pollution in Lake Taihu, which is the third largest lake in China.

Aside from punishing those who speak out, the government also attempts to restrict the flow of critical health information. In 2005, the Chinese Propaganda Department, the government body that is also in charge of censorship, waited 10 days before authorizing the press to report about the benzene pollution threatening the Songhua river in Northeast China, completely disregarding the millions of people who live there.

THREATS AND OBSTACLES

The environment is one of the biggest issues of our time. In order to preserve nature, we must be able to evaluate the resources we have left, and examine how they are being used. This kind of data helps inform society and influence political leaders to create new standards. It’s essential that specialists and environmental reporters are able to provide accurate information about the world around us. Unfortunately, journalists and bloggers are facing more and more obstacles and threats as they go about their work.

Sometimes, a single visit by a journalist at a sensitive location is enough to spark a crisis. As an example, Cambodia has lost half of its forests over the last 15 years. After the organization Global Witness released reports on the situation, three journalists investigated the issue and subsequently received death threats. Their reporting revealed unflattering details about the involvement of relatives of the head of the government, Hun Sen. His brother, Hun Neng, said if anyone from Global Witness came to Cambodia, he would “beat his head up until it breaks.”

Lem Piseth, a journalist from Radio Free Asia, also received death threats as a result of his work. “About the story of the forest; I want you to know that you won’t find enough land there to bury you,” he was told. Piseth was forced to flee the country.

In undemocratic countries, bloggers and reporters are often left to fend for themselves, which is why it’s so important that their work is recognized and publicized.

Clothilde Le Coz has been working for Reporters Without Borders in Paris since 2007.

Hard truth: Traditional journalism must innovate to survive in changing information climate

donal brown — Thu, 10 Sep 2009 20:19:38 +0000

A fellow at Stanford University’s Center for Internet and Society argues that the internet has killed off the mass media with many important benefits to a thriving democratic society. -DB

Center for Internet and Society
Commentary
September 8, 2009
By Sarah Hinchliff Pearson

Sometimes changes are so basic and world-changing that they can be difficult to recognize. Having just finished Losing the News by Alex S. Jones, I was reminded again just how difficult it seems to be for people in the news business to acknowledge the simple truth: the Internet has eliminated the need for mass media.

Yes, professional journalism may still benefit society, but we no longer live in a world where citizens must necessarily depend on a select group of gatekeepers to funnel them information and news. This is the paradigm shift, and as long as it continues to go unrecognized, visions for the future of journalism will be fundamentally flawed.

Therefore, in the spirit of catharsis, in the simplest and most straightforward terms possible, I set forth four truths about the communications ecosystem created by the Internet.

Truth #1: We are all journalists now.

Journalism is no longer a profession; it’s an activity. To engage in journalism means to communicate factual information to a larger audience with the intent to inform. It is characterized not by objectivity, but intellectual honesty. As with art, the quality of journalism varies dramatically. Likewise, as with art, professionals and amateurs are differentiated merely by their ability to make a living selling their material, not by reference to standards or characteristics of their work.

When the cost of distributing information to the public was high, the ability to engage in journalism was extremely limited because it required a connection to a news organization. Now, anyone can write a story or create a video and publish it on the Web nearly instantaneously. Anyone can become a journalist with a few keystrokes.

Truth #2: The glory days of commercial mass media are over.

Now that anyone can be a news source, major news outlets face two new obstacles: unlimited competition and accountability. Traditionally, newspapers, magazines and broadcast networks competed amongst themselves for the attention of passive consumers. Today, news organizations face competition from a nearly infinite universe of information on the Web and, perhaps more importantly, they must battle the drastic rise in consumer control over what they read or watch.

Unlike the experience of flipping channels or the pages of a newspaper, browsing the Internet gives consumers ultimate control over what type of information they access. They are no longer tethered to the finite set of articles chosen by the editors of the newspaper they pick up. Instead, they can switch from nytimes.com to the Drudge Report with a single click.

In addition to unprecedented competition for attention, news organizations are now also subject to the watchful eye of the blogosphere. For the first time, the Fourth Estate is being held accountable for shoddy and unethical reporting. They may not like the scrutiny, but as journalists should know all too well, holding those in power accountable for their actions is critical to a healthy democracy.

Truth #3: So-called news parasites are good for democracy.

Journalism is important to democracy because it is intended to educate the public and create a healthy public discourse about issues of the day. With that mission in mind, it is ironic that so many traditional journalists have deemed news aggregators and bloggers parasites.

In our media-saturated culture, news aggregators fulfill a critical filtering role to help consumers control information overload. Google News and other aggregation sites allow consumers to get news from as many sources as possible at one time.

Obviously, this means that citizens are more informed and have access to more perspectives than they would if they went only to individual web sites. In terms of both autonomy (consumers get to decide what stories they read rather than relying on the choices of editors from a particular news source) and access to information, news aggregators are furthering the same mission of journalists.

Likewise, bloggers contribute to a healthy democracy by not only holding traditional news outlets accountable for their reporting, but also by providing a forum for citizens to engage in public debate and commentary about the issues of the day. The notion that discussing the news could somehow be parasitic is rooted in the perverse idea that news is a commodity that can be owned and controlled. It is difficult to imagine an idea more harmful to the First Amendment and the mission of journalism.

Truth #4: We need less nostalgia and more innovation.

Despite the proliferation of voices on the Internet, it is widely accepted that democracy benefits from the work of quality professional journalists. Serious investigative journalism takes time and money that most people do not have or are not willing to give. We depend on those who make a living doing journalism to help fill that void, especially at the local level where there are fewer non-profits and think tanks devoted to similar muckraking.

But the question of whether that kind of serious journalism can be sustained commercially requires innovation, and nostalgia for the golden days of journalism isn’t getting us anywhere. As Clay Shirky has said, “‘You’re gonna miss us when we’re gone!’ has never been much of a business model.”

Sarah Hinchliff Pearson became a fellow at the Center for Internet and Society (CIS) at Stanford University in January 2009. Her research and writing focuses among other topics on the evolution of journalism in the digital age.

Venezuelan president clamping down on media

donal brown — Thu, 13 Aug 2009 19:15:28 +0000

A United States unclassified intelligence report says that Venezuelan President Hugo Chavez is aggressively silencing his media critics, including bloggers. He has proposed a law that would make it a crime to report on anything the government finds objectionable. -DB

Open Source Center
Analysis
August 3, 2009

President Chavez’s government is moving forcefully to silence critics by introducing a Media Crimes bill that would give it sweeping authority to jail journalists, media executives, and bloggers who report on anything that the government considers to be harmful to state interests.
It is simultaneously moving to shut down more than 200 radio stations, impose broadcasting requirements on RCTV International, and position itself to take over opposition news station Globovision. Tightening control over opposition outlets could make it more difficult for Chavez to blame his favored scapegoat of the media for the country’s problems, however.

Introduced at the National Assembly by Prosecutor General Luisa Ortega, the Media Crimes bill significantly expands the government’s ability to punish media critics for any action or omission that it finds objectionable.

• The bill makes it illegal to report on anything deemed “harmful to public mental or
moral health” or to “the interests of the state,” or anything that would “incite violence” or “create panic.” It also penalizes outlets for not reporting on events or situations that would violate “the people’s right to information.” The bill targets journalists, media executives, and even bloggers.

• Unlike the Radio and Television Social Responsibility Law, under which stations can
be fined or lose their broadcast license, the new bill sets prison sentences of six months to four years for violations, and also applies to print media. Outlets with convicted workers or owners cannot comment on the conviction in any fashion beyond posting a notice (Noticias24.com, 30 July).
• The bill is almost certainly targeted at the government’s long-standing media critics. The government has regularly claimed that Globovision is “harming public health,” and has accused dailies El Universal and El Nacional of misrepresenting official actions, which could be considered against state interests (VTV, 12 July, 16, 15 January).

• The government also may go beyond its traditional targets. State-owned news agency ABN has begun to complain about social networking sites, asserting that Twitter, Facebook, MySpace, and blogs are new ways to communicate that “create terror” (1 August).

The government is also moving forcefully against radio stations and RCTV International, bringing Venezuela closer to a government monopoly on the media.

• Diosdado Cabello, who heads the National Telecommunications Commission
(Conatel), on 31 July announced the closure of 32 radio stations, the first of 240 the
government has vowed to close for allegedly not filing the appropriate Conatel
paperwork (VTV, 31 July; 4 July). He added that another 120 stations have
problems with their licenses (VTV, 31 July).
• Chavez said that these frequencies would be “given to the people,” presumably
referring to new community radio efforts (VTV, 21 July).
• The government also recently imposed national broadcast requirements, including the mandatory live relay of Chavez speeches, on RCTV International, the cable-only
successor to formerly top-rated opposition station RCTV that Chavez took off the air in May 2007 (VTV, 9 July).
The government has repeatedly threatened to close Globovision, but appears to be positioning itself to take over rather than shut down the station.

• Cabello suggested that because one of the two owners listed on Globovision’s original cable concession is dead, the government has the right to reclaim his share (VTV, 16 June).10 If the station’s other owner is found guilty on charges unrelated to the station - - but widely viewed as another move to pressure the station—the government could take over his part of the concession as well, turning it into a government-owned entity.

• Chavez said that the government might drop its complaints if the station had “someone in the management who might think rationally” (VTV, 12 June).

• Globovision has four pending judicial proceedings. One case has already been decided against it; the station could lose its license if found guilty a second time (El Universal Online, 17 May).

Outlook

The Media Crimes bill is the most blatant example of the government’s steady encroachment on media freedom in an effort to establish a media monopoly and stifle freedom of expression.

Silencing his critics would allow Chavez to completely control the media message, but it would also deprive him of his long-standing scapegoat of what he describes as the oligarchic media.

He may be willing to give this up in order to clamp down on the negative news

reporting and commentary, which have been hammering away at the country’s economic problems and Chavez’s increasing authoritarianism for the past year.

The government action against its media critics would also eliminate the only forums available to Chavez’s other domestic critics, including local opposition elected officials, political parties, and university students.