Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if anyone) inside the company leaked information about allegedly upcoming products, has taken a nasty turn. Too bad it's not surprising -- and journalists of all kinds should be paying attention.
A judge in California has decided that the sites don't qualify as "journalism" (AP) under state law and/or the First Amendment. By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers. (Note: At the request of lawyers for the sites, I've filed declarations -- here (104k PDF) and here (1MB PDF) -- saying that in my opinion these sites are performing a journalistic function. I haven't been paid to do so.)
Apple's bullying is bad enough. But the California case is just one of several harbingers of trouble for the online journalism world.
Another was the deliberate provocation from a member of the Federal Elections Commission, Bradley Smith, who's a harsh opponent of the McCain-Feingold law regulating campaign finance. He told CNet that current law requires the FEC to regulate the speech of bloggers and other online denizens who dare to discuss politics.
I regard this more as saber-rattling than a serious threat, at least for now. And it's also clear that Smith is trying to get Congress to punch a hole in the law to make it ineffective. I find myself agreeing increasingly with folks on the political right, including the Heritage Foundation's Mark Tapscott, who (among others) observes that the law is becoming an excuse for the outright regulation, and suppression, of speech.
As someone who supported the intent of McCain-Feingold but now agrees it needs reform if not repeal (and then try again with something better), I wish there was some recognition from those who want to torpedo the law outright that modern politics is being wrecked by the overwhelming influence of money, with serious effects on our republic. When politics becomes a system of one-dollar, one-vote -- and it has become precisely that in recent years -- we need to do something to restore at least a semblance of fairness.
But to use this desire for reform as a bludgeon to wipe out free speech in politics, precisely the kind of speech the nation's founders so ardently wanted to promote, is a perversion of their intent and common sense. Smith's remarks are a red flag waving at the blogging bulls, and they're responding just as he surely hoped -- with fury.
Meanwhile, several weeks ago, two well-meaning members of Congress introduced legislation designed to address the increasing attacks on professional journalists. The Free Flow of Information Act (H.R. 581) has some good points, namely its attempt to give reporters a way to shield sources from unwarranted exposure. But it sharply circumscribes the definition of who's a journalist -- and appears to explicitly exclude bloggers and other non-traditional online journalists.
Who's get the protection? The legislation would give it to:
A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that--In other words, bloggers need not apply unless they work for a major publication or broadcast.(i) publishes a newspaper, book, magazine, or other periodical;
(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; or
(iii) operates a news agency or wire service;
(B) a parent, subsidiary, or affiliate of such an entity; or
(C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.
See a pattern?
We're moving toward a system under which only the folks who are deemed to be professionals will be granted the status of journalists, and thereby more rights than the rest of us. This is pernicious in every way.
Mass media journalists and their bosses should be leading the fight against what's happening to bloggers. I fear they won't, because old media typically refuses to defend the rights of new entrants until the threats against the new folks directly threaten everyone. But my former colleagues in Big Media should understand that when we distinguish among kinds of journalists, discriminating against some because they're not working for organizations deemed worthy (or powerful) enough, trouble will arrive soon enough for everyone.
In a world where anyone can be a journalist, we can't let government or Big Media decide who has the right to inform the public about matters of interest or urgency. The priesthood should be dissolving, not gaining strength -- yet rulings and legislation like these move things in precisely the wrong direction.
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"?
Posted by: David | March 06, 2005 at 05:59 PM
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
Posted by: Darrell | March 06, 2005 at 08:07 PM
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.
Posted by: Another Scott | March 06, 2005 at 09:12 PM
"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?
Posted by: Herb | March 06, 2005 at 09:28 PM
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.
Posted by: Michael | March 06, 2005 at 10:38 PM
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?
Posted by: Jacque | March 07, 2005 at 01:49 AM
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.
Posted by: Owen | March 07, 2005 at 09:53 AM
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?
Posted by: David B | March 07, 2005 at 02:08 PM
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?
Posted by: Robert Poole | March 07, 2005 at 02:11 PM
I have a simple solution (sadly, going forward). Print one or two copies of an issue and publish them. Send them out. Law satisfied.
Posted by: Pecos Bill | March 07, 2005 at 02:41 PM
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.
Posted by: Me | March 07, 2005 at 03:55 PM
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.
Posted by: Glued Screwed and Tattoo'd Blue | March 07, 2005 at 10:10 PM
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.
Posted by: Alex in Los Angeles | March 08, 2005 at 10:56 AM
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.
Posted by: Alex in Los Angeles | March 08, 2005 at 11:06 AM
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!
Posted by: Sharon Jones | March 08, 2005 at 01:42 PM
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
Posted by: Jerome Armstrong | March 08, 2005 at 08:34 PM
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.
Posted by: RedDan | March 09, 2005 at 01:04 AM
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.
Posted by: Doug Thacker | March 09, 2005 at 03:01 PM
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?
Posted by: Ross | March 09, 2005 at 03:02 PM
Now that the Chinese are in bed with Clear Channel, "Big Media" just got bigger.
Keep up the good work Dan.
Posted by: popeye | March 09, 2005 at 04:22 PM
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.
Posted by: Alex in Los Angeles | March 14, 2005 at 05:54 PM
Hit the "print" button. Set to 3 copies. Pass to neighbors. Poof, you're protected.
Posted by: Ben Masel | March 15, 2005 at 01:17 AM
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.
Posted by: Kent Hendrickson | March 27, 2005 at 07:18 PM
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.
Posted by: Anthony | April 10, 2005 at 12:05 PM
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.
Posted by: Lou Covey | April 28, 2005 at 09:33 AM