Sunday, June 13: The A.D.D. Detective
NEWSWORTHY (Update)
by Leigh Lundin
An earlier article about the temporary loss of Apple’s latest iPhone focused on legal efforts to weaken freedom of the press. The so-called democratization of news is poised to leave reporters and even crime writers with fewer civil liberties rather than more.
As newspapers around the nation wither into ashes and dust, prosecutors from coast to coast are taking the position that on-line news blogs do not enjoy First Amendment rights. In the iPhone case, San Mateo County’s Deputy DA Stephen Wagstaffe apparently convinced a court that freedom of the press does not apply to on-line news outlets.
Sock-Puppet Prosecution
I’ve long respected Apple’s Steve Jobs but his peevishness is wearing thin. He and Wagstaffe seem to mouth each other’s words:
"Who can say if Jason Chen’s a journalist? [Further,] there’s a debate as to whether the iPhone was left in a bar or stolen out of [an employee’s] bag."
What? Funny, there hadn’t been any debate until the DA began to spin finding the iPhone as theft. Seems like Apple or Gray Powell would have reported a stolen prototype had that been the case.
Prosecutor in Search of a Crime?
| Elsewhere |
|---|
| In Australia, the founder of the whistle-blower site WikiLeaks, Julian Assange, who published articles critical of Australian government officials, had his passport taken then canceled. While the reasons given appear innocuous, Assange has found himself under repeated scrutiny. A report today suggests the US State Department fears Assange may cross over into espionage.
Australia is toying with a contra-privacy law requiring ISPs to archive all history, blog activity, and eMails up to ten years, available to police upon demand. We’re not there yet, but we should take heed. |
You may remember Gawker’s technology news site Gizmodo paid $5000 to the iPhone’s finder and returned the phone to Apple. [case timeline] You would think Jobs would be appreciative, but the aftermath has taken the shape of a vendetta, fueled by an attention-hungry prosecutor.
While the finder of the iPhone, Brian Hogan, may have behaved in a less than exemplary manner, it’s hardly worth trampling the First Amendment rights of reporter Chen, which, after all, are our rights. As prosecutors are now posturing, National Enquirer and your weekly throw-away shopper enjoy constitutional protection that a news blog agency does not.
If the trend continues, once print media newspapers are gone, what’s left for the First Amendment to protect?
A Final Word
"Liberty of the press is the right of the lonely pamphleteer."
– US Supreme Court: Branzburg v. Hayes, 1972
Thank you!
Thank you for your warm comments and support last week. Thank you.
What is Wikileaks’ Julian Assange thinking? He may be pushing past sensible limits if reports from the US State Department are true that a US Army intelligence officer passed thousands of sensitive diplomatic cables to Wikileaks. Whistle-blowing is one thing, but if Assange proceeds, I would hazard that crosses the line into espionage.
I don’t see this as a 1st Amendment issue at all. Chen’s right to publish wasn’t compromised, so his 1st Amendment rights are intact—his article on the new iPhone is still up on the web.
Now if you want to argue a 4th Amendment violation regarding illegal search and seizure, that’s a different issue.
I have to agree,JLW working last month with an Apple rep, who had nothing to gain in sales bonuses, explained how tight security is when dealing with new Apple hardware. The word impossible has to come to mind.
With Steve Jobs inexplicable reputation as Attila the Hun, it would be difficult to image that any withering, scared to death of his or her job,(no pun intended) employee would chance such venture. We can be pretty sure the story was made up from the get go. Which brings us back to freedom of the press or Blog as you might. One reason the newspapers are withering is they held on too long with trying to actually report the truth and verify it.
Today’s Blogs are akin to Orson Well’s famous broadcast of War of the Worlds. Freedom of the Press was never supposed to be “Make up whatever to hell you want!” reporting. No accountability is what blogs are now vs NEWS, it is however, Gossip, misinformation the Babylon A.D. for sure.
May Snopes prosper for the sanity of the world.
Steve, it is amazing how often I visit snopes and urban legend sites to debunk.
James, the argument is since Chen works for an on-line magazine, it isn’t a real news outlet at all, so 1st Amendment (including journalistic protection of sources) doesn’t apply, which Wagstaffe seems to assume gives prosecutors the right to step on Chen’s 4th Amendment rights, allowing him a fishing expedition.
California statues roughly say a finder of a lost item is legally bound to notify and return the item to the owner. Some contend Hogan’s efforts to return the iPhone were less than half-hearted, so Wagstaffe (and Jobs) now argue the phone was stolen (making it lost and stolen). Wagstaffe has fought efforts to unseal the arguments, so we don’t know if he further argued Chen received stolen property, even though Chen returned the item to Apple.
After bloggers posted articles and directives critical of the TSA, officials went to private homes and seized computers. At least one blogger, without a lawyer and confused by his 1st Amendment rights, assumed he had no 1st and 4th Amendment protection. It doesn’t help when you argue against your own rights, and TSA pointed to that instance and said “See? This blogger admits shield laws don’t apply.”
Pundits also misinterpret a NJ court about a blogger protecting her sources. The NJ ruling is often cited to say bloggers aren’t real journalists and shield laws don’t apply, but that’s not what the ruling said. Instead, the court found the blogger who operated “life coach” and a “Pornafia bulletin board” did not keep notes, fact-check, edit for content, disclose conflicts of interest, or promise confidentiality to her sources as a true journalist should have done. Unfortunately, this has been erroneously reported by news outlets and repeated by bloggers that the digital medium does not enjoy the same protection as print media.
James, the argument is since Chen works for an on-line magazine, it isn’t a real news outlet at all, so 1st Amendment (including journalistic protection of sources) doesn’t apply, which Wagstaffe seems to assume gives prosecutors the right to step on Chen’s 4th Amendment rights, allowing him a fishing expedition.
But Chen’s 1st Amendment rights were never compromised. Anyway, arguendo, how would being a legitimate journalist protect him from having his property seized?
In the first place, the 1st Amendment does not apply only to journalists. Journalists do not have 1st Amendment rights that non-journalists lack. The very idea is legally absurd.
In the second place, what was at issue was his possession of intellectual property to which he wasn’t entitled and which had been acquired by legally questionable means, not his right to publish the details of his crime, if crime it was.
Putting a Freedom of Speech spin on this is simply bad reporting. His 1st Amendment rights aren’t an issue at all.
I say again, this hasn’t been about the right to publish, but the right to protection and the question of what makes a legitimate journalist and a legitimate news organization. This isn’t merely “spin”, but is being discussed in legal circles and across the blogosphere, and Gawker itself is arguing Wagstaffe erred in not respecting their 1st Amendment rights and shield laws. (See references in original article.) We don’t know what Wagstaffe argued because he has fought attempts to release it to the public, but he appears to assume the position that Chen is not a legitimate journalist. Without shield law protection, a journalist’s right to freedom of speech and freedom of the press is impinged.
(As with many stories, Daniel Ellsberg didn’t have a right of possession of the Pentagon Papers acquired by legally questionable means, but without protection of the First Amendment, we would never have been able to read about it.)
In a slightly similar case in 2005, Apple sued the operators of the internet sites O’Grady’s PowerPage and Apple Insider to obtain the identity of their sources, arguing among other things that shield laws did not apply to internet publications. The trial judge agreed, further ruling the reporter’s privilege did not apply to trade secrets.
The appellate disagreed, concluding the activities of O’Grady’s PowerPage and Apple Insider constituted “covered publications” engaged in “gathering and dissemination of news,” making the publishers “covered persons.”
Um, what about Scott Adam’s rights to his comic strip?
Ann, when it comes to third party content not in the public domain, we link to the graphics rather than republish them. Click on the graphics for the source.
And Daniel Ellsberg was arrested and went to trial for the theft of the Pentagon Papers as an act of espionage. (That he was not convicted is generally attributed to gross prosecutorial misconduct, not a surprise given the Who’s Who of felons in Nixon’s White House.) The New York Times and Washington Post won their protection against a government injunction to publish the Pentagon Papers, but (1) Ellsberg was not protected by that decision, and (2) the Supreme Court’s decision in the case hinged on the fact that the information in the Pentagon Papers was hiding information from the public about their own government; a circumstance that clearly does not apply to a lost iPhone. (By the way, my sister Mobi was friends with Ellsberg back in the day.)
A “shield law” only protects a journalist from testifying as to his sources. It does not protect a journalist from being prosecuted for his own misconduct, and that is what is at issue.
As you say, we don’t know what Wagstaffe argued, so to say what it appears to be is speculative, however shrewd the guesses may be. To me, though, it is absolutely obvious that this is not a 1st Amendment issue whatsoever.