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Archive for 2013



Why DiFi Is Wrong About Who’s a ‘Real Reporter’

Tuesday, September 10th, 2013

dianne_feinstein1Dianne Feinstein, the senior US Senator from California, has never been a fan of the press, dating back to her days as a local official in San Francisco. Now, from her perch as a high-ranking and powerful member of Congress, Feinstein has far more political influence; sadly, she is using it to try to extend the authority of the government to determine who is what she calls as a “real reporter” and who is not, and thus undeserving of new protections for journalists to be provided in pending legislation to establish a new federal shield law.

Today, in the second part of a two-part series, Morgan Weiland of the Electronic Frontier Foundation looks at Feinstein’s key role in the debate over the shield law.

By Morgan Weiland
Electronic Frontier Foundation

During the Senate Judiciary Committee’s August 1 mark-up of the shield law bill aimed at protecting journalists’ sources, Sen. Dianne Feinstein (D-CA) reportedly objected to the definition of journalist provided in the bill as introduced, seeking to restrict the definition’s scope to apply only to “real reporters.” To achieve her misguided goal, Sen. Feinstein has put forward an amendment to S. 987 that would greatly exacerbate the problems with the definition of who’s a journalist that existed in the bill as introduced.

Durbin_flagHer amendment, to be submitted for Sen. Dick Durbin (D-Il.) as well, not only retains the problematic requirement that a person “regularly” engage in journalism to enjoy shield law protections, but moreover adds new requirements that would make it especially difficult for self-publishers such as independent bloggers and citizen journalists to be protected under the law. Indeed, her new requirements for being either salaried or at least affiliated with a news “entity” seem to purposefully target these self-publishers.

These problems are rooted in the vagueness of many key terms in her definition of journalist. Indeed, most essential terms are not defined. While vagueness provides an interpretative battleground, self-publishing bloggers and citizen journalists are disadvantaged in this fight.

Three Roads to “Journalist” that All Go Nowhere

dianne_feinsteinFeinstein’s amendment effectively advances a traditional vision of journalism through the three definitions of journalist that it provides, each of which requires that a person be affiliated with a journalistic “entity” or institution (including news websites and other digital news services, and other periodicals distributed digitally).

Specifically, the amendment requires that a journalist meet one of the following definitions:

1. working as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information;”

2. either (a) meeting the prior definition “for any continuous three-month period within the two years prior to the relevant date” or (b) having “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications by an entity . . . within two years prior to the relevant date;” or

3. working as a student journalist “participating in a journalistic publication at an institution of higher education.” (emphases added)1

shield-lawThere are problems with each of these three definitions. First, as we pointed out in our critique of the House’s bill, requiring that an individual is “salaried” is problematic because many people do journalism but do not do it as their primary source of income. Further, it is entirely unclear who or what an “agent” or “entity” is.

Second, for an individual to fall under the second, seemingly looser criteria, that individual must have distributed the news “by means of an entity.” (emphasis added)2 While this definition may cover freelancers, it is again unclear what it means to have “substantially contributed” to a “significant” amount of work of an “entity.” Indeed, for both the first and second definitions, essential terms are not defined—vagueness that, as we’ll see later, ultimately hurts independent bloggers and citizen journalists.

While the amendment’s inclusion of student journalists is laudable, it does nothing for those students who do not work for a “journalistic publication” at their college or university—or for those students the moment they graduate.

Still Requiring that Journalists “Regularly” Engage in Journalism

Additionally, Sen. Feinstein’s amendment retains the original Senate shield bill’s problematic requirement that individuals “regularly” do journalism to count as a journalist. Specifically, the amendment requires either:

1. that individuals “engage in . . . the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on” matters of public interest; or

2. that individuals “regularly conducted interviews, reviewed documents, captured images of events, or directly observed events.” (emphases added)3

As in the original Senate bill, the amendment fails to define what “regularly” means, vagueness that cuts against non-institutional journalists.

Vague Language Is Bad for Independent Bloggers, Citizen Journalists

GimmeRewriteSen. Feinstein’s amendment is riddled with vague language, failing to define key terms including “agent,” entity,” “substantially contributed,” and “regularly”—on which the definition of who’s a journalist turns. Non-traditional journalists are at a disadvantage when the interpretative waters are muddy. Why? Because such vagueness invites interpretations that exclude those who are on the margins of status quo journalism, and who are often in a more vulnerable position and unable to hire legal counsel to sort through the law’s ambiguities. As a result, independent bloggers and citizen journalists would likely be interpreted out of Feinstein’s definition of journalist.

The very fact that developing a crisp, clear definition of journalist is difficult should signal to Congress that it might not be equipped to wade into the uncharted waters of deciding who is a journalist. But it’s a problem that Congress can easily avoid by linking shield law protections to the act of journalism, not the definition of who is journalist.

Define ‘Journalism’ not ‘Journalist’ in New Shield Law

Monday, September 9th, 2013

cartoon-dog-news-reporterToday Calbuzz publishes the first of two pieces from the Electronic Frontier Foundation, the most influential Internet civil liberties organization in the world, analyzing pending federal legislation that allegedly would provide new protections for journalists.

The so-called “Free Flow of Information Act” would establish a U.S. shield law, giving reporters the right to refuse to testify about information and sources used in producing stories. While most states, including California, provide such a privilege for reporters, the federal government does not; at a time when the Obama Administration has stepped up harassment of journalists over stories that include leaked information, First Amendment groups and journalists of all stripes have pushed for such legislation.

But as Morgan Weiland of EFF shows, the law proposed by New York Democratic Senator Charles Schumer in fact is quite limited in its scope, and heavily favors elite legacy media while ignoring the rights of bloggers and other online journalists. Tomorrow, we’ll post a second Weiland piece that looks at the retrograde stance taken by Senator Dianne Feinstein, who is seeking to block the interests of online reporters altogether, while giving the government the power to define who is a journalist and who isn’t. (Full disclosure: a high-ranking Calbuzz apparatchik has contributed actual cash money to the legal defense operations of the Electronic Frontier Foundation).

weilandphotoBy Morgan Weiland
Electronic Frontier Foundation

Lawmakers in Washington are again weighing in on who should and should not qualify as a journalist—and the outcome looks pretty grim for bloggers, freelancers, and other non-salaried journalists.

On July 12, the Justice Department released its new guidelines on investigations involving the news media in the wake of the fallout from the leak scandals involving the monitoring of AP and Fox News reporters. While the guidelines certainly provide much-needed protections for establishment journalists, as independent journalist Marcy Wheeler explained, the DOJ’s interpretation of who is a “member[] of the news media” is dramatically narrower than the definition provided in the Privacy Protection Act and effectively excludes bloggers and freelancers from protection. This limiting definition is causing alarm among bloggers like Glenn Reynolds on the right as well.

While the DOJ’s effort to limit the scope of who can be recognized as a journalist is problematic, it doesn’t have teeth. Guidelines are, well, guidelines. But the report is part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it. Importantly, Congress introduced federal shield bills in May—both ironically named the “Free Flow of Information Act of 2013”—that arguably would exclude bloggers, freelancers, and other non-salaried journalists from protection because they are not included within the bills’ narrow definition of who qualifies as a journalist.

If these bills—support for which the White House reaffirmed in its DOJ report—pass without change, Congress effectively will create two tiers of journalists: the institutional press licensed by the government, and everyone else. That’s a pretty flimsy shield if what we are really trying to protect is the free flow of information.

reporterNot-So-Free Flow of Information Acts

Both the House (H.R. 1962) and Senate (S. 987) bills use the euphemistic phrase “covered person” as a stand-in for “journalist.” In defining “covered person,” the bills effectively describe an individual working for a mainstream news organization and threaten to exclude bloggers.

Specifically, the House bill requires that such an individual engage in “journalism” for “financial gain or livelihood.” The Senate bill defines a “covered person” as one who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes” on “local, national, or international events or other matters of public interest.” (emphasis added) Further, both bills explain that “covered person” includes that person’s “supervisor, employer, parent [company], subsidiary, or affiliate.”

The requirement of doing journalism for money and on a consistent basis, coupled with the suggestion that such activities happen within a larger journalistic organization, paints a picture of a New York Times correspondent—and arguably excludes bloggers, freelancers, and other non-salaried individuals who practice the craft of journalism and need the most protection.

Déjà Vu: Schumer’s Shield Bill Amendment Excluding Bloggers, Freelancers

Congress’ hostility to bloggers and independent journalists is nothing new. Indeed, EFF documented and fought against Sen. Charles Schumer’s (D-N.Y.) 2009 amendment to a similar federal shield bill that explicitly exempted bloggers and others from protections.

Clearly, Congress wasn’t listening. Though the prior legislation died after WikiLeaks—in conjunction with the New York Times and others—started publishing a trove of State Department cables in late 2010, Congress has revived both the good and bad. This time around, anti-blogger language is baked into the bills’ text. Sen. Schumer has re-introduced the Senate version with the restrictive definition of journalist, along with a large national security exception that would render the bill meaningless in the cases where a reporter’s privilege is needed the most.

nypost-headlessLegislative Fix: Define Journalism, Not Journalist

So what’s the solution? Congress should link shield law protections to the practice of journalism as opposed to the profession. Not only does this fix ensure that bloggers and freelancers are not categorically denied access to the protections to which they should be entitled under the law, but also it addresses lawmakers’ concerns, recently voiced by Sen. Dick Durbin (D-Ill.) in a June 26 op-ed, that in the absence of a legal definition of journalist anyone can claim to be one, thereby diluting the law by stretching it beyond any relevant boundaries. We can have a line in the sand; it simply needs to be one that is meaningfully tied to what journalism actually is—a point that Wheeler eloquently makes in endorsing a similar solution.

Plus this interpretation has the weight of precedent: EFF successfully argued in Apple v. Does in 2006 that the goal of a shield law is to protect the free flow of information, not the people we historically think of as journalists. And as EFF has explained, many federal courts use a test to determine if a state-level reporter’s privilege applies that turns on the practice of journalism, asking

whether that person intended to disseminate information to the public, and whether that intent existed at the inception of the newsgathering process . . . . Under this test, courts have provided the privilege to non-traditional journalists, including book authors and documentary filmmakers.

Fortunately, the bills currently moving through Congress have really good language defining journalism. Consider the House’s definition:

The term ‘journalism’ means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

If we dropped the bills’ definitions of “covered person” and relied instead on the House bill’s definition of journalism, then we’d be well on our way to strong shield laws that protect the practice of journalism, regardless of what label we attach to the person doing it.

shield-lawBroaden the Proposed Shield Now

Congress is moving forward with these anti-blogger bills: the Senate Judiciary Committee is slated to markup the bill later this month, the House has referred its bill to two Judiciary Subcommittees, and the White House reiterated its support for the bills in the DOJ report. Further, legacy media organizations like the Society for Professional Journalists and the Newspaper Association of America have voiced strong support for the bills’ passage.

Sending a clear message ensuring that bloggers are in fact journalists and that their work is journalism is even more important now than it was when Congress considered a federal shield law in 2009 because recent district-level decisions have denied this basic reality of contemporary journalism. Most prominently, in a ruling from October 2011, a federal district judge in Oregon suggested that bloggers not “affiliated” with a major media organization don’t fall under the protection of the state’s shield law. Such state-level narrowing of the scope of who a journalist is cannot be allowed to set the trend for the entire country.