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March 05, 2005

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Listed below are links to weblogs that reference The Gathering Storms Over Speech:

» 'This is Pernicious in Every Way' from Snarkmarket
Dan Gillmor has a sharp summary of recent goings-on re: bloggers' legal status this morning. This thing about regulating blogposts as political contributions is whack. And also indicative of the errant direction of our campaign finance law: Rather than... [Read More]

» Confidential sources from aTypical Joe: A gay New Yorker living in the rural south.
It did occur to me earlier today - when I wrote, in the context of FEC regulation of political speech, that I'm in the bloggers are not journalists camp - to wonder, but what about bloggers and confidential sources? For... [Read More]

» The gathering storms over speech from New Media Musings
Dan Gillmor blogs on The Gathering Storms Over Speech. Dan echoes the concerns several of us have been raising over the past several days. Excerpt: Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if... [Read More]

» The danger of defining journalism from Martin Stabe
Apple Computer&rsquos;s attempt to subpoena web site owners to discover who has been leaking confidential company information to them took a worrying twist for bloggers this week when a California judge ruled that the web sites do not qualify for... [Read More]

» APPLE VS. BLOGGERS, PART II from Michelle Malkin
Dan Gillmor, a well-known technology writer who used to be a columnist at the San Jose Mercury News, weighs in on Apple Computer's attempt to force three bloggers to reveal confidential sources: A judge in California has decided that the... [Read More]

» APPLE VS. BLOGGERS, PART II from Michelle Malkin
Dan Gillmor, a well-known technology writer who used to be a columnist at the San Jose Mercury News, weighs in on Apple Computer's attempt to force three bloggers to reveal confidential sources: A judge in California has decided that the... [Read More]

» Free Flow of Information Act of 2005 from Don Singleton
Potential problems in the Free Flow of Information Act of 2005 [Read More]

» Protect us from our protectors from the smedley log
I came upon Dan Gilmor's post on the Apple court decision regarding bloggers as journalists. I share Dan's fears on this subject. Having studied journalism a bit, I'm extremely uncomfortable with the courts ideas of what constitutes legit [Read More]

» When I Stopped Being a Journalist from A Little Pollyanna
There are some murky lines between journalist and blogger, I suppose. I can't help but think there are the same murky lines between journalist and freelance writer. Here is Dan Gillmor's blog entry. The Gathering Storms Over Speech Apple Computer's... [Read More]

» Apple vs. Think Secret from John Moltz
There's a lot of hand-wringing about Apple's lawsuit against rumor sites that published information on upcoming products. Dan Gillmor, incorrectly I believe, conflates the Apple situation with the recent comments by a member of the FEC. First of ... [Read More]

» Forget about Free Speech from sLop
Dan Gillmor on Grassroots Journalism, Etc.: The Gathering Storms Over Speech Dan gives an overview of how Apple, recent legislation and politicians under corporate influence are doing everything and anything to take away our Freedom of Speech rights. F... [Read More]

» Is The White House Pushing Back? from small dead animals
I've been watching the debate developing this week around two closely related developments - mutterings about regulating blogs through Federal Election Commission and the fallout of the Apple case. In a case with implications for the freedom to blog, a... [Read More]

» Confidential sources from aTypical Joe: A gay New Yorker living in the rural south.
It did occur to me earlier today - when I wrote in the context of FEC regulation of political speech that I'm in the bloggers are not journalists camp - to wonder, but what about bloggers and confidential sources? For... [Read More]

» Is The White House Pushing Back? from small dead animals
I've been watching the debate developing this week around two closely related developments - mutterings about regulating blogs through Federal Election Commission and the fallout of the Apple case. In a case with implications for the freedom to blog, a... [Read More]

» De journalistieke kant van weblogs from M i n i t r u e . n l - ignorance is strength
De blogosphere staat de laatste dagen bol van de berichtgeving over de rechtzaak van Apple tegen drie weblogs.

Three blogs which published sensitive information about upcoming Apple products could be made to disclose where the leaks came from [Read More]

» Apple v. Bloggers: the Wrong Test Case for Blogger Rights from Desirable Roasted Coffee
Dan Gillmor is outraged at the latest development in the Apple v. Does case. On March 3, Judge Kleinberg tenatively agreed with Apple that AppleInsider and PowerPage , who published stories allegedly based on trade secrets leaked by Apple insiders [Read More]

» Under Attack from Andrew Lark
Our rights are under attack. We all seem so preoccupied with figuring out how to enjoy, play in, and monetize the blogosphere that the issue of free speech isn't getting the play it deserves. Gillmor says it all:Apple Computer's disgusting [Read More]

» Durst apologizes to Gawker for $80! million! dollar! lawsuit! from Boing Boing
Fred Durst sends flowers to blog-conglomerate Gawker, apologizes for including them in lawsuit over leaked sex phonecam video. Link to story. Now, if only Apple would follow suit... Link to Dan Gillmor's editorial on why Apple's legal action against b... [Read More]

» On Protecting Journalism and Democracy from Copyfight
One of the gathering storms over Internet speech has broken. On Friday a Santa Clara County Court judge ruled [PDF] that in Apple v. Does, Apple Computer's trade secret claims trump both California's reporter's shield laws and the reporter's... [Read More]

» Regulating bloggers is curbing freedom of speech from Daniela's Blog
The Bipartisan Campaign Finance Reform Act of 2002, which regulates federal campaign financing, has huge impact on the future of political blogging and its role in the U.S electoral process. Political blogging does not necessarily affect the outcomes of a [Read More]

» A Prospectus from Usher Blogs
I said recently that I was putting together a prospectus on a university research project. I am going to submit the project, through my blog (mainly so I don’t have to manually cite each reference) to the University of Colorado’s [Read More]

» A Prospectus from Usher Blogs
I said recently that I was putting together a prospectus on a university research project. [Read More]

» A worm in the core from Fluid Imagination
Introduction Why is it that all the important questions come up in areas where the necessary answer is difficult to defend? It could be because Progress likes to have its fun with us, as if it was saying, [Read More]

Comments

David

Dan,

Have you read the Uniform Trade Secrets Act? Do you not see how this case might apply to that? I'm not saying it does, but I think there's enough there for it to go to court to find out for sure. The information on Apple products was so detailed it could only have come from an inside source. In my opinon, Think Secret had to have known it their source was breaking a NDA. Remember, this isn't an isolated incident. Think Secret had been doing this for some time and getting cease and desist orders from Apple which they obeyed. If they were in the right all along, why not ignore the C&Ds?

And you didn't answer the question on where the line is drawn. Ok, SSN numbers are not allowed, as that's an invasion of privacy. Can Think Secret publish employees' salaries if they have an HR person disclose that information to them? Or is the line "personal info bad, corporate info good?" And ifso, can Think Secret publish Apple's R&D budgets if a source gives them over? At what point does Think Secret (or the NY Times) have a responsibility to say "even though I'm getting information from inside Apple, this should not be published"?

Darrell

Dan, I may have missed it but I don't know where you think the line should be drawn between a journalist and 'not' a journalist.

Can anybody be journalist, in your view, just by saying "I am a journalist"?

If not, where is the line?

Cheers,

Darrell

Another Scott

In the recent Judith Miller (.PDF) ruling by the DC Court of Appeals the court cited lots of Supreme Court precedents that indicate bloggers have First Amendment protections. E.g. In Sentelle's concurring opinion (p.6):

The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it

necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

408 U.S. at 704. The Supreme Court went on to observe that “freedom of the press is a ‘fundamental personal right . . . not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets . . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’” Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical “blogger” sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court’s vision of a broadly granted personal right?

I think the California Judge is clearly wrong about the First Amendment aspects. Everyone, no matter how small, has First Amendment protections. However, there is no federal protection that enables journalists to shield sources in grand juries, and I think the Miller opinion makes a good case that there shouldn't be. If everyone has First Amendment protections, then everyone can be a "journalist". If journalists can shield sources in grand juries and elsewhere, then everyone is shielded. That's clearly an untenable situation if the court system is to have a procedure to arrive at the truth.

State shield laws are different and addressed in the DC court opinion.

My $0.02.

Cheers,
Scott.

Herb

"There's no comparison with this case, which is about newsworthy information."

Dan, normally I'm with you, but I gotta disagree. On the server of every corporation in the world is information that the corporation wants kept confidential but would be considered 'newsworthy', whether it's the Windows source code, Boeing's plans for the 7E7, Lucas' script for the next Star Wars movie, my own acoustics R&D, or whatever. Are you saying that as long as someone is willing to break their confidentiality agreements, anything is fair game to print?

On a related topic, one of the arguments frequency put forth is that if the NY Times had printed the information, Apple wouldn't be suing. If the NYT (or the Boston Globe, SJ Merc, Washingon Post, FNC, CNN Online, etc) obtained this information, and they *knew* that it came via a broken-NDA, would they publish the info?

Michael

I cannot agree with you more when you talk about the problems in identifying journalists simply by their employers. However, you must understand the stark differences between those who work within the traditional (even if modern) media and those who are on their own. Without the benefits of fact checking or even simple editing, putting individual bloggers on the same level as a journalist working for a news organization is naive at best. I would not try to say and will never believe that individual freedom of speech is very important. In addition, allowing those who wish to discuss topics anonymously is important too. However, free speech should not include the ability to publish all and any information. There is already precedence for this. Information critical for national security or information that could betray someone's right to privacy is already protected. I have always seen the protection that allows journalists to keep secret their sources as a fundamental right to help in the fight against wrong. Whistle-blowers and insiders will always be more likely to release information when they believe their involvement will be kept secret. I doubt very many people would disagree keeping this ability is important. Yet, allowing people to break the law by releasing information that benefits the public only in their desire to know everything about everything and be covered by the same protection is just wrong.

The Apple case versus the various websites is a perfect example of this. If these sites had published information on Apple that showed wrong-doing or illicit activity that could harm the public, I would have no problems in protecting their sources. However, this is not the situation here. They released information provided by individuals who signed NDAs. If they knew these sources had signed the NDAs, then they too should be held culpable (just as ANY news organization/journalist should be). They were accessories to the crime and for no other reason than because their readers wanted to know everything. If, on the other hand, they didn't know about the NDAs, they should be forced to reveal the sources, but not be responsible beyond that.

I understand the difficulties about making this distinction between public's need to know (public benefit would outweigh individual (or corporation) rights) and public's want to know. I believe, in most instances, it is quite obvious and for those times when it is not, it will have to be settled in court. Yet, it would give journalists the power to uncover the bad things people and companies do, but also force them to consider what benefits the public might have in receiving this information.

Jacque

Dan, since you favor transparent corporations and government, why not transparent journalism?

If ThinkSecret publishes something about Apple's Next Big Idea, they should also reveal their sources. If it turns out those sources violated their contracts, that fact should also be revealed. (Publish the NDA!) Somebody should then let everyone know what actions, if any, Apple takes against the leakers. And so on.

By the way, Dan, would your opinion be different if it were a small company's product that was leaked, and that leak put them at a competitive disadvantage because Apple or Dell could jump on it?

Owen

Careful, Dan...in your zeal to protect the rights of bloggers, don't forget that others, including corporations, have rights, too.

I don't see in our Constitution, statute or case law any provision that business secrets that are not illegal or harmful to the public are therefore public property, or that the freedom of the press to publish trumps legal contracts forbidding disclosure.

Apple may be heavy-handed in protecting their property, but it IS their property and they have rights. If the blogger who outed their products and strategies had no legal obligation to restrain themselves from disclosure, neither are they protected from the consequences of that violation of Apple's privacy.

Bloggers have the rights we all have to express an opinion and take a position, and I don't think any responsible party would contest that position. I disagree with Bradley Smith, but your characterization of his position doesn't exactly advance the cause of thoughtful and fair analysis by a blogger. These are complex issues, and knee-jerk reactions don't do the issues justice, nor do they contribute to thoughtful resolution in the public interest.

No freedom is exempt from responsibility, and for every responsibility there is a measure of accountability. Allowing anybody to wants to to claim special -- and undeserved -- privilege to violate the rights of others with impunity will inevitably dilute the moral and legal strength upon which all of our rights are based.

David B

Seems like if I was blogger or MT I could quickly stop this "problem" of bloggers as journalists by calling myself a "news agency". Thus all users are "affiliated" with such an agency and thus become protected...yes?

Robert Poole

You mention the Free Flow of Information Act (H.R. 581), and it seems to me that the act could be repaired relatively simply, if only it were rewritten to remove the bias toward broadcast or "push" based media (newspapers, television newscast, etc.). It seems as though lawmakers haven't clued in that "pull" based media (web sites that someone has to visit to obtain information from) is just as valid. My initial reading of the key points of the act initially led me to believe that web-based distribution channels would be protected, but then I saw the "and that-" clause. Tricky tricky. What are the lawmakers afraid of, that they feel the need to artificially narrow the scope of the law's protections?

Pecos Bill

I have a simple solution (sadly, going forward). Print one or two copies of an issue and publish them. Send them out. Law satisfied.

Me

It seems to me that sending out an email [think listserv] would satisfy the additional requirement for "other periodical".


" ...(i) publishes a newspaper, book, magazine, or other periodical;... "

2¢ worth from me.

Glued Screwed and Tattoo'd Blue

You'd NEVER catch my hero, Bill Gates, being so petty. Gee, dancing apes lead his company!

Free Speech! Microsoft. Natch.

Why not be free? MS has never had an original product. No risk, no gain. Just extortion.

Alex in  Los Angeles

I don't think a blogger or the NY Times should be allowed to protect any old source who wants to disseminate trade secrets, but even trade secret dissemination should be protected in some cases. In Apple's case, I think the answer is...I don't know actually. But I strongly disagree with some of the arguments overstating Apple's case and thowing "liberty of the press" to the curb in the name of "trade secrets."

from "Another Scott" quoting from the Judith Miller case, above:

"necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."

The above argues clearly that bloggers are protected under "liberty of the press." Why are some people in this page so quick to attack bloggers? That is nonsense, and smacks of people too willing to give up THEIR liberties just because they don't see themselves as journalists today.

A separate issue, as many have argued, is do journalists/bloggers have a right to protect their souces. This is a legitimate grey area, and I hope people can keep this separation.

However, an NDA does not automatically throwout protection of sources/whistleblowers. As some have pointed out, NDA's cannot trump the public's right to know, especially if the NDA's are in effect attempting to cover up illegal behavior. The movie "The Insider," which covered the tobacco industry, illustrates the point.

So the question before the court, IMHO, should simply be does the journalistic desire/right to protect sources outweigh Apple's rights IN THIS CASE, regardless of whether we are talking NY Times or Thinksecret. Assuming the presence of an NDA was known, whether the NY Times would have posted the story as Thinksecret did, should only matter in that maybe the NY Times would have made a better decision weighing Apple's limited rights against their limited right to protect their source.

Alex in  Los Angeles

In other words, "tortious interference" as a legal theory that some on this page have supported, cannot be applied blindly, if at all. The right of the public to know would suffer too much if a simple NDA would be able to surpress journalism on important matters. Again, I don't know if it is a good idea to include the Apple case in a standard of what is important, but I wouldn't want to wake up in an America where people didn't fight for "liberty of the press" with extreme diligence.

Sorry for the rant.

Sharon Jones

Regarding this section:

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

May I suggest that serious bloggers start up their own radio stations? Wait, not as far-fetched as it sounds. Go to live365.com - anyone can start an internet radio station, for free. Or for the more ambitious, there's podcasting. Only let's keep this amongst ourselves for now, so they don't think to disallow these outlets!

Jerome Armstrong

Dan, it's not just the "right wingers" that you are agreeing with. The Democratic partisan bloggers are just as oppossed to this effort as well. I took a poll on MyDD of the members, and only 12% supported any further type of regulation of internet activities, by the FEC:
http://www.mydd.com/poll/1109969470_iUXKlkzc

RedDan

Hi. Just came over from Gilliard's blog.

I agree with most of what you point out, and would like to add my 0.02.

I am a (cue theme music) published scientist with a PhD and everything...and not even the "halls of academe" are so exclusive.

See, the thing is, if you have a bright idea, the data, theory, and analysis to back it up, and the ability to put it into readable form and send it to a journal...and the peer reviewers and editors find that your work meets scientific standards...you can get published.

In some cases you don't even need to pay for the publication costs.

You don't need a PhD, you don't need a masters, you don't need a BA, and you don't even need to have your high school diploma.

You don't need to be affiliated with a university, research center, government or corporation.

ALL you need is clearly identified methods, open access to your data, reproducible results, and the ability to analyze, interpret, and communicate your science.

Of course, all of the education, resources, and background that come with getting your PhD and working for a university research program or government research center helps an awful lot...

But the point is that the peer-review system creates an environment where ANYONE can contribute, regardless of their money, employer, or background.

All that matters is the science, not where it comes from or who did it.

Doug Thacker

Newspapers began as the blogs of their day. And for many years they remained that way - sheets of news and opinion, first handwritten, then printed, distributed for little or no profit. This practice was brought from Europe to the American colonies. According to the History of Newspapers, written by Mitchell Stephens for Colliers Encyclopedia,

"The Boston News-Letter, America's second printed newspaper, grew out of a handwritten newsletter that had been distributed by the town's postmaster, John Campbell. [. . .] Campbell lost the position of postmaster in 1719, but he refused to give up the newspaper. So, his replacement as postmaster, William Brooker, began printing his own newspaper, the Boston Gazette, on December 21, 1719. A day later, the third successful American newspaper, the American Weekly Mercury, appeared in Philadelphia.

"[. . .] The first paper to attempt to give voice to political debate was Boston's third successful newspaper, the New England Courant, which was first printed in 1721 by James Franklin. The Courant was the most literary and readable of the early colonial newspapers, and in its first issue it began a political crusade. The issue was smallpox inoculations, which were first being used in Boston that year used to fight an epidemic. Cotton Mather, one of the most powerful men in Boston, supported inoculation. James Franklin did not. So the first American newspaper crusade was a crusade against smallpox inoculation. The next year, the Courant took on the colonial government, which it accused of failing to do enough to protect the area from pirates. This crusade landed James Franklin in jail.

"Later a court decried that 'James Franklin be strictly forbidden...to print or publish the New-England Courant....' To evade this order, James Franklin made his younger brother Benjamin, who was apprenticed to him, the paper's official publisher. Ben used the situation to escape from his apprenticeship. Benjamin Franklin took over control of the Pennsylvania Gazette in Philadelphia in 1729, made it into one of the finest papers in the colonies and embarked upon an extraordinary career as a writer, journalist, printer, businessman, postmaster, scientist and statesman."

The practice of throwing newspaper writer/publishers in jail for their efforts was no less a tradition than were the papers themselves. This continued, especially in Europe, right up through the founding of the American republic. It was not for nothing then that the authors of the constitution felt the need to inscribe press freedom in first ammendment of the Bill of Rights. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Note that freedom of speech and of the press are in the same clause.

Blogging carries on the citizen-journalism tradition of the U.S., and has the full weight of the country's founding documents behind it.

Ross

Dan, just a quick question.

You ask whether you stopped being a journalist when you left your last job.

Were you accountable in your last job? Are you now?

popeye

Now that the Chinese are in bed with Clear Channel, "Big Media" just got bigger.

Keep up the good work Dan.

Alex in  Los Angeles

Doug Thacker,

Thank you for pointing out to Dan's readers their American Heritage of a free press. How terribly often we fail to fight of our heritage.

Which is not to say, Apple doesn't have a case, just that so many of Dan's readers are throwing the bloggers to the altar of corporate interests.

Ben Masel

Hit the "print" button. Set to 3 copies. Pass to neighbors. Poof, you're protected.

Kent Hendrickson

You say, "I wish there was some recognition from those who want to torpedo . . . [McCain-Feingold] outright that modern politics is being wrecked by the overwhelming influence of money, with serious effects on our republic." You miss the point. Money has always been a part of politics and always will be. Money per se is not the "problem"; the problem is politicians who treat campaign contributions as bribes to be repaid. It is the worst kind of (or perhaps the perfect Washingtonian) cynicism for the McCain-Feingold Gang to bellow that curbs on free political speech are necessary because they, our elected "representatives," don't have the backbones to be honest.

Anthony

Here is the thing, I agree with your posts in some ways, however I believe that apple has a right to protect its products and techology from competitors. there are some things you wouldn't want people to know, secrets about you and if that were to get out i'm sure you wouldn't just brush it off and say fair game.

You, me, apple and whoever have a right to protect personal and private information.

Lou Covey

While I wholeheartedly agree that press freedoms MUST be extended to the blogging community, I also INSIST that news bloggers adhere to standards and ethics of journalism if they want to maintain that freedom. Unfortunately, that has not been the case. Apple issue was not the dissemination of news but the theft of intellectual property. What a company is preparing to release to the public is their business until it is released to the public and they have a right and a responsibility to the owners of the company--the shareholders--to protect that property. Secondly, the bloggers disseminated false information based on conjecture and poorly informed resources. That kind of shoddy journalism invites litigation in the print and broadcast world as well. We lose freedoms in this country not because of totalitarianism but because we abuse those freedoms. Blogging is one of the greatest tools for democratizing news gathering and delivering, but it will be useless blather until we start applying ethics and restraint to our blogging efforts. This is not just corporate bullying, this is an issue of incompetence on the part of would-be journalists.

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