There had been a time when we thought that a "media shield" law was a good idea. Such a law would make it explicit that journalists don't have to give up their sources. However, over the many, many years of the debate concerning such a law, we noticed a troubling pattern, in that politicians kept wanting to narrowly limit who was a "journalist," often saying amateur journalists don't count. Senator Lindsey Graham even explicitly stated that he wasn't sure if bloggers deserved First Amendment protections. A completely out of touch Senator Dianne Feinstein insisted that "real journalists" draw salaries from big media companies. When Wikileaks first became a big deal, those working on the legislation actually worked hard to make sure that Wikileaks would not be covered.
There are all sorts of problems with all of that, starting with the most obvious: when the government gets to define who is and who is not a "journalist," you're raising serious First Amendment questions about how Congress can make no law interfering with a free press. By defining who is and who is not a journalist, it would appear that Congress is violating that basic concept.
Driving home this point last week, the main author of the Senate's shield law, Senator Chuck Schumer, himself has admitted that he's not sure if his own law would protect Glenn Greenwald:
Schumer discussed the bill's provisions and how, if it became law, it might affect journalist Glenn Greenwald, who reported on National Security Agency's secret surveillance based on documents leaked by Edward Snowden.
"It's probably not enough protections to (cover) him, but it's better than current law," Schumer said.
And that demonstrates how the law actually may be worse than current law. If it's carving out exceptions for the people doing real investigative reporting, breaking big stories that are having a very serious global impact on a variety of issues, then it's making the situation worse, not better.
Any law that attempts to define "journalist" is going to be a massive problem and likely unconstitutional. There is some view that we already have a journalism shield law in the First Amendment itself. Alternatively, if the government really wants to make an explicit safe harbor to protect journalist sources, it seems that a better approach would be to not define "journalists," but just make it clear that it protects anyone "engaged in journalism," whether professional or not. The whole reason why the Senate is so fearful of having the law too broad is that they're worried that, say, someone engaged in criminal activity will be able to get immunity from revealing accomplices by claiming to be a journalist. But, instead you could just look at whether the activities they were engaged in was gathering information for the sake of disclosing it, and see that it was a form of journalism. But, instead, it looks like Congress wants to push forward with a bad law that is almost certainly unconstitutional.
While there have been some occasional nutty attempts to paint journalists reporting on the documents that Ed Snowden revealed as being somehow legally at risk for doing so, for the most part, US officials have recognized that we do respect the freedom of the press in this country. This has been in stark contrast to the UK, where a whole investigation is ongoing into The Guardian's role in reporting on the documents. However, that changed this morning, when Director of National Intelligence James Clapper appeared before the Senate Intelligence Committee to deliver his "Worldwide Threat Assessment."
In his prepared statement, Clapper made it clear that he views the journalists who have copies of the documents as "accomplices" to Snowden -- who has been charged with violating the Espionage Act. As he said:
Snowden claims that he's won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security.
Here, Clapper is referring to "accomplices" as those who can "facilitate the return of the remaining" documents. As Snowden has said, the only ones to whom he has given those documents are the journalists with whom he has worked. As has been publicly reported, the journalists who are in possession of thousands of Snowden documents include myself, Laura Poitras, Barton Gellman/The Washington Post, The New York Times, the Guardian, and ProPublica.
Is it now the official view of the Obama administration that these journalists and media outlets are "accomplices" in what they regard as Snowden's crimes? If so, that is a rather stunning and extremist statement. Is there any other possible interpretation of Clapper's remarks?
That is absolutely crazy. Even more ridiculous is that ODNI's public affair director more or less confirmed the point:
The office's public affairs director Shawn Turner said in an email that “director Clapper was referring to anyone who is assisting Snowden to further threaten our national security through the unauthorized disclosure of stolen documents related to lawful foreign intelligence collection programs.”
Of course, just last year (prior to the Snowden leaks), there was a bit of a scandal when it was revealed that the DOJ was claiming to courts that certain journalists were accomplices in order to spy on them to get access to their sources. That controversy resulted in Attorney General Eric Holder promising new guidelines to stop targeting journalists. And, just today, Holder told Congress that those new rules are already in effect.
Clapper's choice of words here was deliberate. Even if the government doesn't go after any of the journalists with Snowden's documents, the message today's statement made is loud and clear: we can go after you and charge you criminally. And that's an incredibly chilling message in a country that is supposed to respect the freedom of the press.
In July, we wrote about a worrisome ruling by an appeals court, that said that NYTimes reporter James Risen could be compelled to give up his sources by putting him on the witness stand in a whistleblower case. Risen is, quite reasonably, arguing that Constitutional protections for a free press should prevent him from having to reveal sources. The appeals court panel had ruled two-to-one against Risen and in favor of the government. Risen asked the entire appeals court to rehear the appeal (a so-called "en banc" rehearing), but the Fourth Circuit appeals court has rejected the request by an overwhelming majority: 13-to-1. The one vote in favor of rehearing the appeal was, not surprisingly, the sole judge who sided with Risen in the original ruling, Roger Gregory. The case isn't over yet, as Risen will almost certainly ask the Supreme Court to hear the appeal. And, given the subject area, one hopes that the Supreme Court will agree to take the case. But, for now, we're left in a world where the government continues to have way too much power over a supposedly free press in their ongoing war against whistleblowers.
Over the past several months, the Obama Administration has defended the government's far-reaching data collection efforts, arguing that only criminals and terrorists need worry. The nation's leading internet and telecommunications companies have said they are committed to the sanctity of their customers' privacy.
I have some very personal reasons to doubt those assurances.
In 2004, my telephone records as well as those of another New York Times reporter and two reporters from the Washington Post, were obtained by federal agents assigned to investigate a leak of classified information. What happened next says a lot about what happens when the government's privacy protections collide with the day-to-day realities of global surveillance.
The story begins in 2003 when I wrote an article about the killing of two American teachers in West Papua, a remote region of Indonesia where Freeport-McMoRan operates one of the world's largest copper and gold mines. The Indonesian government and Freeport blamed the killings on a separatist group, the Free Papua Movement, which had been fighting a low-level guerrilla war for several decades.
I opened my article with this sentence: "Bush Administration officials have determined that Indonesian soldiers carried out a deadly ambush that killed two American teachers."
I also reported that two FBI agents had travelled to Indonesia to assist in the inquiry and quoted a "senior administration official" as saying there "was no question there was a military involvement.''
The story prompted a leak investigation. The FBI sought to obtain my phone records and those of Jane Perlez, the Times bureau chief in Indonesia and my wife. They also went after the records of the Washington Post reporters in Indonesia who had published the first reports about the Indonesian government's involvement in the killings.
As part of its investigation, the FBI asked for help from what is described in a subsequent government report as an "on-site communications service" provider. The report, by the Department of Justice's Inspector General, offers only the vaguest description of this key player, calling it "Company A.''
"We do not identify the specific companies because the identities of the specific providers who were under contract with the FBI for specific services are classified,'' the report explained.
Whoever they were, Company A had some impressive powers. Through some means – the report is silent on how – Company A obtained records of calls made on Indonesian cell phones and landlines by the Times and Post reporters. The records showed whom we called, when and for how long -- what has now become famous as "metadata."
Under DOJ rules, the FBI investigators were required to ask the Attorney General to approve a grand jury subpoena before requesting records of reporters' calls. But that's not what happened.
Instead, the bureau sent Company A what is known as an "exigent letter'' asking for the metadata.
A heavily redacted version of the DOJ report, released in 2010, noted that exigent letters are supposed to be used in extreme circumstances where there is no time to ask a judge to issue a subpoena. The report found nothing "exigent'' in an investigation of several three-year-old newspaper stories.
The need for an exigent letter suggests two things about Company A. First, that it was an American firm subject to American laws. Second, that it had come to possess my records through lawful means and needed legal justification to turn them over to the government.
The report disclosed that the agents' use of the exigent letter was choreographed by the company and the bureau. It said the FBI agent drafting the letter received "guidance" from "a Company A analyst.'' According to the report, lawyers for Company A and the bureau worked together to develop the approach.
Not surprisingly, "Company A" quickly responded to the letter it helped write. In fact, it was particularly generous, supplying the FBI with records covering a 22-month period, even though the bureau's investigation was limited to a seven-month period. Altogether, "Company A" gave the FBI metadata on 1,627 calls by me and the other reporters.
Only three calls were within the seven-month window of phone conversations investigators had decided to review.
It doesn't end there.
The DOJ report asserts that "the FBI made no investigative use of the reporters' telephone records." But I don't believe that is accurate.
In 2007, I heard rumblings that the leak investigation was focusing on a diplomat named Steve Mull, who was the deputy chief of mission in Indonesia at the time of the killings. I had known Mull when he was a political officer in Poland and I was posted there in the early 1990s. He is a person of great integrity and a dedicated public servant.
The DOJ asked to interview me. Of course, I would not agree to help law enforcement officials identify my anonymous sources. But I was troubled because I felt an honorable public servant had been forced to spend money on lawyers to fend off a charge that was untrue. After considerable internal debate, I decided to talk to the DOJ for the limited purpose of clearing Mull.
It was not a decision I could make unilaterally. The Times also had a stake in this. If I allowed myself to be interviewed, how could the Times say no the next time the government wanted to question a Times reporter about a leak?
The Times lawyer handling this was George Freeman, a journalist's lawyer, a man Times reporters liked having in their corner. George and the DOJ lawyers began to negotiate over my interview. Eventually, we agreed that I would speak on two conditions: one, that they could not ask me for the name of my source; and two, if they asked me if it was ‘X,' and I said no, they could not then start going through other names.
Freeman and I sat across a table from two DOJ lawyers. I'm a lawyer, and prided myself on being able to answer their questions with ease, never having to turn to Freeman for advice.
Until that is, one of the lawyers took a sheaf of papers that were just off to his right, and began asking me about phone calls I made to Mull. One call was for 19 minutes, the DOJ lawyer said, giving me the date and time. I asked for a break to consult with Freeman.
We came back, and answered questions about the phone calls. I said that I couldn't remember what these calls were about – it had been more than four years earlier – but that Mull had not given me any information about the killings. Per our agreement, the DOJ lawyers did not ask further questions about my sources, and the interview ended.
I didn't know how the DOJ had gotten my phone records, but assumed the Indonesian government had provided them. Then, about a year later, I received a letter from the FBI's general counsel, Valerie Caproni who wrote that my phone records had been taken from "certain databases" under the authority of an "exigent letter,'' (a term I had never heard).
Caproni sent similar letters to Perlez, to the Washington Post reporters, and to the executive editors of the Post and the Times, Leonard Downie and Bill Keller, respectively. In addition, FBI Director Robert Mueller called Downie and Keller, according to the report.
Caproni wrote that the records had not been seen by anyone other than the agent requesting them and that they had been expunged from all databases.
I'm uneasy because the DOJ report makes clear that the FBI is still concealing some aspect of this incident. After describing Caproni's letters, the report says: "However, the FBI did not disclose to the reporters or their editors that [BLACKED OUT]." The thick black lines obliterate what appear to be several sentences.
If you were to ask senior intelligence officials whether I should wonder about those deletions, they'd probably say no.
I'm not so sure.
The government learned extensive details about my personal and professional life. Most of those calls were about other stories I was writing. Some were undoubtedly to arrange my golf game with the Australian ambassador. Is he now under suspicion? The report says the data has been destroyed and that only two analysts ever looked at it.
But who is this 'Company A" that willingly cooperated with the government? Why was it working hand in glove with the FBI? And what did the FBI director not tell the editors of the Times and the Washington Post when he called them acknowledging the government had improperly obtained reporter's records?
There have been debates on a setting up a special journalist shield law for many years, and every time it comes up it leads to something problematic, as various supporters suddenly want to narrowly define what a journalist is, often in a manner that carves out new forms of media. And, indeed, it appears that's exactly what happened this morning in the Senate Judiciary Committee. Eventually, the bill passed out of committee with a much broader definition than some feared, but one that still tries to define who is a journalist very specifically -- in a manner that "carves out" the specific kinds of journalism Congress doesn't like, such as Wikileaks.
The new amendment, brokered by Sen. Chuck Schumer, significantly expands on that definition. Now, a journalist would be defined as someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist.
In addition, the law would protect a person deemed appropriate by a federal judge, so long as their newsgathering practices have been consistent with the law.
This is better than it could have been, and giving judges the ability to go beyond the narrow definition is at least better than the alternative. However, it still is an attempt to carve out certain types of journalism that Congress is uncomfortable with -- and frankly, I'm rather uncomfortable with Congress thinking that its role. Chuck Schumer flat out said that he wanted this definition to exclude Wikileaks -- which is an operation that many of us believe absolutely is a journalistic operation.
"The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that," Schumer said at the time. "But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill."
In fact it seems like a good part of the hearing this morning was an attempt for Senators to show their contempt for the types of journalists they don't like. Senator Feinstein, who has been pushing for a very narrow definition for a long time, suggested at the hearing -- as if it were self-evident -- that no 17-year-old high school drop-out with a blog should be covered. But why? What if that high school drop out does actual journalism and breaks a story about, say, government corruption? Why shouldn't she be covered? Senator Jeff Sessions went to ridiculous lengths, arguing that journalists who reveal classified info shouldn't be covered. In other words, those who do real investigative journalism and expose government wrongdoing wouldn't be considered journalists if his amendment had passed (thankfully, it didn't). But, as Senator John Cornyn pointed out, just the fact that you had the Senate debating who should and who shouldn't be a journalist should be "chilling to us all." Though, of course, even Cornyn wanted to only cover journalists who are Americans.
In the end, what passed is extremely flawed and definitely not a step in a good direction. Once we reach the point at which we even allow Congress to set parameters for who should, and who should not be considered a journalist, we've gone too far. Because we know that setting that precedent will lead to further encroachments down the road. Furthermore, the current definition will almost certainly not protect journalists when they need it most, in stories involving "national security," more or less making this law a dead letter on arrival.
We've long advocated that any shield law shouldn't try to define journalists by their profession, but rather should focus on journalism by the process and actions taken. That makes much more sense, since today anyone can do journalism, even if they're not employed as a journalist.
However, the more I've seen this process play out, the more I'm convinced that any media shield law is a bad idea in that it tries to set up a separate tier of free speech in which a certain class of people or certain actions are "more protected" than others. The argument that we already have a media shield law known as the First Amendment is an increasingly compelling argument.
from the protection-based-on-exclusivity...-what-a-wonderful-idea dept
Legislators are still trying to put together a national "shield" law for journalists (this is the third such effort at a national level) and, as usual, are bogged down in a semantic debate about who should qualify for these protections. Despite "freedom of the press" being hardwired into the system and the fact that a government effort to protect journalists from its own actions (seeking to identify whistleblowers and sources in order to punish them or shut them up) lies somewhere between "ironic" and "disingenuous," the pursuit of a credible "shield" law continues.
The bill defines a journalist as a person who has a "primary intent to investigate events and procure material" in order to inform the public by regularly gathering information through interviews and observations.
It also adds this stipulation, which is a bit more troublesome.
The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.
I can see this stipulation working against whoever the government feels is worthy of the title "journalist." News develops. It seldom has a distinct starting point. Of course, if someone is a journalist, it stands to reason that they're always "planning" to publish their findings. But that might be a lot harder to prove when the government starts slinging subpoenas.
If someone sends a tip to a journalist, it may not be immediately evident that it is newsworthy. It might be some time before it's determined to be important, newsworthy and its source in need of protection. It's a strange stipulation and one that seems to poke some compromising holes in the "shield."
But onto the "who's really a journalist" argument. Some elected officials feel the language in the bill isn't specific enough. One in particular, Dianne Feinstein, repeated the stupid but inevitable phrase that always accompanies discussions related to shield laws:
Feinstein suggested that the definition comprise only journalists who make salaries, saying it should be applied just to "real reporters."
This is nothing new for Feinstein, who's (along with Sen. Dick Durbin) previously made the argument that acts of journalism can only be performed by major news agencies, cutting everyone else out of the protective loop. This is a protective move based partially on ignorance and partially on the reality that major news networks are easier to control, seeing as most aren't willing to give up access to the Beltway by pissing off its residents.
Sadly, this sort of reactionary ignorance isn't limited solely to government representatives. This same sort of statement has been made by published authors to demean the self-published and by old school journalists to demean bloggers, serial Tweeters and pretty much everyone not associated with a sinking masthead. Whenever someone assumes they're capable of determining who is or isn't a real whatever, they're usually speaking from a position of privilege, one that can only be maintained as long as the status remains quo.
The same goes for government officials arguing over the definition of "journalist." It's someone who performs the act of journalism. It's as simple as that. But if you accept this definition, then you put the government at a greater "risk" of not being able to pursue and punish those who expose its wrongdoing. Feinstein makes this governmental fear explicit in another comment.
Sen. Dianne Feinstein, D-Calif., wondered whether it could be used to provide protections to employees of WikiLeaks, an organization that allows anonymous sources to leak information to the public.
"I’m concerned this would provide special privilege to those who are not reporters at all," she said.
Two things to note: One, the government would hate to see people like Snowden or Manning go unpunished because someone at Wikileaks was able to deflect subpoenas and court orders with these protections. Second, this isn't just a government push -- the news industry itself has expressed a willingness to sacrifice Wikileaks in order to expedite passage of a shield law.
It seems rather unlikely the government would extend this protection to entities like Wikileaks (especially not with major news agencies on board with selling out Wikileaks, etc.), but at least Sen. Schumer pointed out that Feinstein's belief that "real" equals "drawing a salary" was a very ignorant take on the current reality.
"The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that," Schumer said. "But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill."
If this bill is ever going to provide real protection for journalists, it will first have to recognize that journalism isn't defined by the journalist's employer, paycheck or association with a large media company. It's an act and it can be performed by nearly anyone. More importantly, the bill should be equally as concerned with building in strong consequences for government actions that undermine this protection. Without these, entities like the DOJ will hardly be dissuaded from using "unofficial channels" to seize phone records or trace email conversations in order to hunt down protected sources.
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.
Right before the Snowden leaks came out, you may recall there were some other controversies, involving the DOJ spying on reporters, including claiming that reporter James Rosen was an "aider, abettor or co-conspirator" in order to get access to his emails and phone records. In response to this controversy, President Obama... put Attorney General Eric Holder in charge of investigating these efforts, despite the fact that it was under Eric Holder's watch that these things happened.
The new guidelines, which the official said would take effect almost immediately, would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials, as an agent did in a recently revealed search warrant affidavit involving a Fox News reporter.
They would also make it harder — though not impossible — for prosecutors to obtain a journalist’s calling records from telephone companies without giving news organizations advance notice...
According to that report at the NY Times, the DOJ also said that it can't do any more unless laws are changed:
“This is as far as the department can go on its own until Congress passes the media shield legislation,” the Justice Department official said
That's simply not true. The DOJ's guidelines are just that: guidelines. They can set pretty clear guidelines for themselves that make it clear that the DOJ will not spy on reporters' communications with sources. But they're choosing not to do so. Either way, all of this seems (yet again) like a reaction to them being called out on questionable behavior. They made no effort to fix these guidelines until what they were doing came out in the news. It's difficult to take the DOJ seriously when they promise to change after they've been caught.
"Who is a journalist is a question we need to ask ourselves," he said. "Is any blogger out there saying anything—do they deserve First Amendment protection? These are the issues of our times."
Now, as many people will rightly point out, within the context it's pretty clear that he spoke imprecisely. He was discussing a potential shield law for journalists. He wasn't really suggesting that bloggers might not deserve any First Amendment rights. I'm pretty sure he'd agree that they do, in fact, have the right to free speech. Instead, he's referring to another part of the First Amendment, which guarantees freedom of the press.
But, I'll argue that even in that context, the statement is really no less ridiculous. For years, Congress has debated a shield law for journalists, which basically allows them to protect their sources without legal liability. And each time it's debated, this issue comes up, with some in Congress seeking to carve out "new media," always using the same bogus rationale, arguing that if "bloggers" get shield law protection, then it means anyone can refuse to give up information on anyone else, by claiming to be a blogger.
This is hyperbolic and untrue.
As we've pointed out, there's a simple way to solve that problem: just make the shield law cover acts of journalism rather than target journalists. Many people may not be journalists by profession, but still, at times, perform journalism. And it's not that difficult to figure out which is which. Otherwise, you're carving out a special class of people in an arena in which people doing the exact same thing would face different rules.
And the problems of trying to carve out "journalists" instead of acts of "journalism" become pretty clear, pretty quickly. The last time the shield law concept was being debated, Senators Chuck Schumer and Dianne Feinstein tried to add a carve out that made it clear that Wikileaks should not be protected by the law. And that should scare people. Because when the government can magically decide that this kind of journalism is protected, while that kind of journalism which embarrasses the government is not protected, then you no longer have freedom of the press. At all.
So Senator Graham's question is quite ridiculous. The "Freedom of the press" needs to cover all acts of journalism, not just those who qualify as "journalists" under an amorphous standard, which is likely to be whether or not a court believes a certain publication is "legit" enough.
Remember how Eric Holder wanted to hold a meeting with a bunch of journalists as he seeks to revise the "guidelines" the DOJ sets up for itself (fox watching the hen house, anyone?) on how it spies on journalists? A meeting where many top news organizations refused to go because it was officially "off the record?" In the end, the media seemed to be split on whether or not to go, as summarized by the Huffington Post (who didn't go):
Not going: New York Times, AP, Huffington Post, McClatchy, CNN, CBS News, Fox News, Reuters, and NBC News.
Going: The Washington Post, Politico, Wall Street Journal, Los Angeles Times/ Chicago Tribune, ABC News, Bloomberg, USA Today.
At the session, Holder and Deputy Attorney General James Cole expressed a willingness to revise the guidelines for such investigations, journalists present at the get-together told POLITICO.
But Holder stopped short of offering any concrete changes to the guidelines. Instead, the Attorney General sought to assure the journalists that he and the DOJ were trying to seek a balance between the demands of national security and the free flow of information, and sought suggestions from the journalists on how those changes might be achieved.
Ah, so the hens get to suggest to the fox how they'd like their rights to be violated, and then the fox gets to decide how best to "incorporate those suggestions"? I'm sure that will work out just great. As some who were in attendance noted, nothing in the meeting suggested that the DOJ was actually going to change or adjust its policies.