DOJ's New 'Less Likely To Spy On Press' Rules Only Apply To Whoever DOJ Feels Is Really 'News Media'

from the seems-like-a-big-loophole dept

We recently mentioned that the DOJ has put out its revamped guidelines in which the organization promises to be a little more careful before spying on journalists and their sources (and friends, colleagues and family...). However, as some are pointing out, the guidelines appear to be pretty careful about defining "the press" to only mean "people who work for big media organizations." Everyone else is fair game.

DIOG does include online news in its definition of media (PDF 157).

“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

But then it goes on to exclude bloggers from those included in the term “news media.”

The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).

Then it goes onto lay out what I will call the “WikiLeaks exception.”

As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.

This kind of issue keeps coming up with the discussions around a "media shield" law, in which politicians keep suggesting that we need an official designation for who is and who is not a journalist. Of course, as we've been saying for years, that's silly and antiquated. You could easily write such a shield law to be about protecting journalism rather than journalists. That's because, these days, almost anyone can do journalism, if the opportunity presents itself. If someone is trying to bring important information to the public, that's a journalism role, and those actions should be protected, no matter who the employer might be.

The government's continued insistence that it somehow needs to define who is and who is not a journalist seems like it's not just a mistake from a policy perspective, but also something that (perhaps on purpose) leaves open a giant loophole to spy on lots of people the government probably shouldn't be spying on.


Reader Comments (rss)

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    That One Guy (profile), Jul 15th, 2013 @ 10:27pm

    An 'accidental' loophole so big you could drive a truck through it

    So 'official' news organizations, which these days seem to be little more than government PR departments, get the dubious protection from the Do(i)J, whereas other people, groups and sites which might present 'conflicting' facts and views are fair game...

    Yeah, I'm sure that was completely unintentional... /s

     

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    Anonymous Coward, Jul 15th, 2013 @ 11:50pm

    When you define journalism, you can control journalism.

     

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    Nein Es Aye, Jul 15th, 2013 @ 11:58pm

    LOL Does this really matter?

     

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      vastrightwing, Jul 16th, 2013 @ 8:50am

      Re: No it makes no difference

      Have we not learned that when officials speak, they speak with forked tongue? Ask any Indian, they'll tell how turthful any "word" is: not very.

      Actions speak louder than words.

       

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    Hephaestus (profile), Jul 16th, 2013 @ 12:05am

    So let me get this straight, people who hype the fluff the government wants the population to hear, on the nightly news, are journalist. And people who break real news stories about corruption, law breaking, and lies are not journalist.

    There is something really wrong with this picture.

     

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    jupiterkansas (profile), Jul 16th, 2013 @ 12:08am

    So basically anyone whose has a job that could be threatened is considered a journalist. Report the wrong thing and they're fired - no longer a problem.

     

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    saulgoode (profile), Jul 16th, 2013 @ 12:15am

    I would define a real journalist as one who rejects the DOJ's definition.

     

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    The Old Man in The Sea, Jul 16th, 2013 @ 12:15am

    What makes a journalist?

    My dad was a newspaper printer by trade. One of the things he used to complain about was the problematic skills of the journalists and editors at the paper he worked at. It was a regular occurrence that the Linotype operators would be rewriting the the news copy because of its inconsistent spelling and grammar. He did say that there were a couple of the journalist staff that were quite good but the rest really needed to get a better education.

    Hence, this might explain why the government wants what it wants. It can more easily handle incompetents.

     

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      jupiterkansas (profile), Jul 16th, 2013 @ 7:58am

      Re: What makes a journalist?

      That's an editor problem, not a journalist problem. A journalist's job isn't to punctuate correctly. It's to report to others what happened.

       

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        The Old Man in The Sea, Jul 16th, 2013 @ 2:38pm

        Re: Re: What makes a journalist?

        Not really, if a journalist can't even spell or have relatively correct grammar (in newspaper media), how competent are they in reporting their news. Admittedly, editors who allow this aren't any better.

        To report something, you do need to be able to be comprehended. Hence, you need to be able to communicate. Correct grammar is important here.

        At any rate, my point (in its fairly obtuse way) was to say that if journalists and editors can't get their copy right, how much of the story have they got right as well? If they can't take enough care over this fairly simple and minor thing, have they taken care over the rest?

        Now, when critiquing this have I communicated well or am I as incomprehensible as a howler monkey?

        My wife and children would probably say the latter.

         

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    Matthew H (profile), Jul 16th, 2013 @ 12:23am

    Wait....

    Wait....MySpace? Really?

     

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    Anonymous Coward, Jul 16th, 2013 @ 12:32am

    whoever is pulling the strings over all the government spying is going to continue to do so on whoever they want. highlighting various specifically written 'rules' just make that obvious. having been caught doesn't mean for 1 second that all this is gonna stop. it will more than likely make the practice harder to detect, but stop? no!

     

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    Anonymous Coward, Jul 16th, 2013 @ 1:50am

    WikiLeaks exception?

    Just add your point of view to every pieces of material to be published, and it fits the defination.

    Someone enlightens me what's the problem in there?

     

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    anonymous howard, Jul 16th, 2013 @ 1:58am

    so

    does techdirt qualify?

     

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    Tim Griffiths (profile), Jul 16th, 2013 @ 4:56am

    I can imagine someone from the DOJ reading this and having a panic attack...

    As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience.

    And scribbling "as a journalism professional." at the bottom because damn me if the rest doesn't sound exactly like a blogger, SHOCK!

     

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    The Real Michael, Jul 16th, 2013 @ 4:56am

    For the DOJ to make the bold claim that they're in a position to determine who's a journalist and who isn't is akin to saying that they can also determine who's allowed to have free speech. IOW, they're abusing their authority.

    Hardly anyone watches or reads the state-fed mainstream media anymore because it's become a laughingstock. Too bad that they're not going to have their way, because we're not going to let them.

     

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    Anonymous Coward, Jul 16th, 2013 @ 5:18am

    must be a huge slap in the face !!

    For you NOT to be considered a journalist, of course you are NOT a journalist, you would not accept being put under any kind of journalist integrity, or code of ethics, you would consider that a restriction of your rights.

    But READ journalists do abide by codes of ethics, they are generally do real reporting.

    Not the paste and comment what you are famed for, you report on journalists, but you are not one.

    So unless you are able to get away from the cut, paste, comment you will never be considered a journalists, and as such you really do not deserve any shield protections.

    You asked for a definition, you have received a definition, it was clear from the start you would not fit into that definition.

    Bloggers are not journalists, and you're not even a blogger, you're a google, cut, paste, comment.

    Yes, it's true you actually do cut / copy what real journo's do.
    And we all know you are the self proclaimed "Editor-in-Chief", but I guess you are a self proclaimed many things.

     

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      Bengie, Jul 16th, 2013 @ 5:23am

      Re: must be a huge slap in the face !!

      "But REAL journalists do abide by codes of ethics, they are generally do real reporting."

      You've just excluded almost all "journalists".

       

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        Anonymous Coward, Jul 16th, 2013 @ 5:40am

        Re: Re: must be a huge slap in the face !!

        Yeah that is part of why we are in such a bad state - we have had a major shortage of real journalists, and an overabundance of pundits, party line editorialists, and reporters who merely parrot the press releases without a shred of fact checking or calling on outright bullshit. All in the name of almighty access.

        Perhaps there should be a universal-access journalism reform bill put into place. Selective reporter access should never be a source of influence and control.

         

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    Anonymous Coward, Jul 16th, 2013 @ 5:26am

    Journalism ethics and standards

    There are many different 'codes of conduct' for journalists but it's basically the following..

    TRUTHFULNESS
    ACCURACY
    OBJECTIVITY
    IMPARTIALITY
    Fairness
    public accountability

    You are clearly no impartial, you have specific agenda's, you are far from impartial either, you have been caught out in regard to truthfulness, and you have failed to admit to 'special interests' and previous dealings with the people who write (copy/paste/comment) about.

    Fair ?? no.

    Unless you are willing to accept expected journalistic standards, you will never be considered a journalist, no matter when title you anoint yourself with.

     

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      ChrisB (profile), Jul 16th, 2013 @ 5:58am

      Re: Journalism ethics and standards

      These codes are just suggestions. Journalist aren't professionals, who have a body that regulates their behaviour (like doctors, lawyers, etc). Engineers actually have to take an ethics exam to get their professional status, and can have it revoked if they are unethical. I don't think any other profession has this.

       

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      Anonymous Coward, Jul 16th, 2013 @ 7:23am

      Re: Journalism ethics and standards

      Ever read the opinion section of the newspaper?

       

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    Anonymous Coward, Jul 16th, 2013 @ 5:36am

    defining "the press" to only mean "people who work for big media organizations."

    “News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.

    This is what they mean by "truthfulness", and accuracy.

    No where in that statement does it refer to big media organizations !! You just made that up, traditional does not mean big, it's means traditional, on-line does not mean big it means on-line.

    You fail 'objectivity', 'truthfulness', 'accuracy', 'fairness'.

    this article is exactly why you are not a journalist, and at this rate will never be.

     

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    Joshua Roberts, Jul 16th, 2013 @ 5:54am

    yes, exactly as I have been saying - this is really a licensing scheme and framework for government to determine who is or who is not a journo - the end points will be you need a license to run a blog or have a website lol - the cost alone will drive most ppl out of the game, leaving CNN/FOX etc. from humble decepticon acorns, mighty NWO oaks do grow

     

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    Anonymous Coward, Jul 16th, 2013 @ 6:55am

    The Department of Justice is attempting to abridge the first amendment which specifically states that it "shall not be abridged."

     

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    Anonymous Coward, Jul 16th, 2013 @ 7:25am

    I'm curious if you could pull a discrimination lawsuit if the DoJ ever tried to charge you as not being a "journalist"?

     

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    Pixelation, Jul 16th, 2013 @ 8:09am

    It does appear that this steps on the 4th amendment.

     

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    Rapnel (profile), Jul 16th, 2013 @ 9:08am

    The department of justice spies on citizens regardless of profession, without warrants and/or without just cause and without conscience.

    Corporations are forced (or, in AT&T's case willing donors) to contribute to government transgression.

    The department of justice enforces the law, interprets the law and lobbies for and gets laws passed that favor fighting crime over liberty.

    Your data are belong to the department of justice and defense in multiple countries and for any reason.

    Your communications, travels and financial transactions are all logged, cataloged and accessible at any time.

    "What is this shit on my face? My God, what is that awful smell?"

    Like it or not we are now a 97% controlled populace. Sure, you can still get away with breaking some laws but have fun storming the castle.

    To hell with liberty and justice for all. The allegiance has crumbled.

    "You're as free as we'll let you be." is not freedom, is not liberty and is definitely not a path to justice and most definitely not a path to safety.

    You can't have freedom without privacy. No, you can't. You are, all of you, open books to liberty crooks, control freaks and decidedly unpatriotic patriots.

    This is not the country you're looking for.

     

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    special-interesting (profile), Jul 16th, 2013 @ 10:35am

    How can an organization with little or no oversight on freedom of speech, freedom of expression and freedom of the Press, be allowed to propose guidelines on these very vital cultural American foundations. To remove these critical pillars of American societies is an affront to the basic vlaues that define American Democratic values of freedom.

    What the proposed DoJ rules protects is only possibly the opinion of current administration(s) and the loose gun behavior of the political party in power at the time. (Ummmm... was that party B or A???!!! Or was that A or B???!!! Whats the (choice/pick C) Constitutional difference?) Especially since it does not include protection for the obvious news sources like the normal news site blogger and even the lowly Facebook (etc) event entry.

    Its an uncomfortable truth that present media does not actually do much reporting or journalism. (nor are they paid/rewarded or given enough time/resources to do so) They rely greatly on the opinions, journalism, reporting, fact gathering OF BLOGGERS and contributing writers. (letters to the editor etc.)

    Opinion is/has always been covered by law so why compromise such a basic constitutional right with a badly written DoJ policy as this? This is not just a small slip down the slippery slope of totalitarian power. Journalism is almost entirely opinion.

    This proposal as written has the “lets protect big corporations and ourselves (as we like to do whatever we like)” unofficially written all over it. Not spoken is the unwritten likely attempt to “lets propose the most ridiculous free speech/constitutional violations possible and see what we can get” kind ofpolitical/public psych-out. Is this a (power) fishing exercise by the DoJ?

    In addition the to the obvious “power fishing” the DoJ seems to be casting a propaganda/whistle-blower clause. Such a stupid suggestion attempts to over-right several earlier, insightful, laws (trying?) to protect the honest whistle-blower. When administrations are at contrast the public surely must be aware that some vital issue is involved. (hint, hint)

    In NO way can this kind of policy protect reporting, journalism or Freedom of the Press Rights. Its just not possible. Unless sources are unilaterally included/protected there can be no Freedom of the Press at all. NONE!



    When incompetent or bad/stupid/corrupt people are in a position of power/authority it takes a huge amount of public awareness to counteract their corruption (or at least stupidity). Its actually unlikely that Congress or the House will be able to fathom how much they loose when listening to such politically biased tripe and Constitutional nonsense.

    Anyone can be a reporter, journalist or news source just by entering an event to their best recollection or an opinion that tries to explain/justify/reason-out/fathom/historically-justify/whatever an event/action/concept/other. Its a wide open field that cannot be put into a sentence let alone a word.

    If such a (DoJ) policy stands then there most certainly will be no such thing as reporting let alone responsible journalism. Where will they get there spark of creation without being able to rely on current bloggers and other widespread sources of public opinion/fact?

    Basically everyone is a reporter, journalist news source and opinion maker. ALL are protected under the Constitution. Most are persecuted by the last few presidents? There is no real difference between a professional reporter/journalist/writer to a blogger/respondent/letter-writer. All are the same in the watchful eye of the Constitution of Independence.

    This brings to light...how far down the slippery slope have we gone? To persecute whistle-blower is a shame. To persecute normal reporters and journalism may (at best) be described as a propaganda campaign.



    Personal note; The slash notation/whatever/expanded-meaning used. How to say so much with so little? The posts are already so wordy that few read comment on them. (And take so long to write that they are at the bottom of dead TD articles.) Want to write a book or two on each cool TD article.



    Reactionary,

    AC; “When you define journalism, you can control journalism.” So concise!

    AC2; Are ALL journalists and reporters truthful/accurate/objective/impartial/fair/accurate? NO, FRIGGING WTF ABSOLUTE, WAY! (same for politicians/lawyers/doctors/government/government-officials/etc) Are all bloggers/writers/respondents/letter-writers the same? No. (No emphasis because such analysis is the same for the normal/average pedestrian.)

    What is important is the critical review of the reader. (!!!)

    AC3; “The Department of Justice is attempting to abridge the first amendment which specifically states that it "shall not be abridged."” Brilliant observation!


    Rapnel; What is needed is actual criminal penalties for certain bad behavior of GOVERNMENT and MILITARY officials. Clean and clear cut jail sentences (and revocation of pensions) for spying on American citizens private lives. Jail!

    Agreement in that one cannot have freedom without privacy. The real question is: do the citizens of America control their government or does the government control them?

     

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    Jasmine Charter, Jul 16th, 2013 @ 11:54am

    If Benjamin Franklin were alive...

    If Benjamin Franklin were alive today... do you think he'd have a printing press or a blog...

     

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    Anonymous Coward, Jul 16th, 2013 @ 8:22pm

    HAHAHAHAHA

    Why did I know you guys would want to reject a voluntary code of conduct/ethics..
    It's obvious you don't want to tell the truth, or check your facts, or second source your information.

    After all, this is Techdirt, not a group of Journalists.

     

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    Anonymous Coward, Jul 16th, 2013 @ 8:26pm

    AC; “When you define journalism, you can control journalism.” So concise!

    Masnick wants to define it as well, it's only his definition is not the same as any 'realistic' definition.

    Why would Masnick not want to promote accuracy, truthfulness, balance and so on ???

    Oh that's right,, it's TechDirt that's why.

    Honestly, truthfulness, accuracy HAS NOT PLACE here on TECHDIRT.

    Masnick wants to lie, be biased, be unfair and untruthful, not check facts and STILL WANTS TO BE taken seriously as a journalist..

    NOT GOING TO HAPPEN..

     

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    Anonymous Coward, Jul 16th, 2013 @ 8:30pm

    "A journalist's job isn't to punctuate correctly. It's to report to others what happened."

    it's not to make up shit and post it in a blog as truth, or accurate or whatever.

    Masnick does not do journalism, he does copy and past of material other journalists do. As is his desire to steal the work from others, after all it's far easier to actually DOING WORK himself.

    Masnick wants all the advantage's (like protection) and NONE of the responsibilities (like honesty)..

     

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