Posts Tagged ‘Media Shield’

Prosecutors Place Gag Order on News Site After Demanding List of Readers

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Tuesday, November 10th, 2009

Philadelphia, PA: The Justice Department has subpoenaed a news web site for the identities of its readers, a case that opens doors to privacy and 1st Amendment concerns.

The department demanded that indymedia.us provide the IP addresses of every reader that visited the site on June 25, 2008. The subpoena,  submitted by U.S. Attorney Tim Morrison, did not disclose the subject of the investigation, but did include a gag order.

The grand jury subpoena also required the Philadelphia-based Indymedia.us Web site “not to disclose the existence of this request” unless authorized by the Justice Department

The site parlayed Mr. Morrison’s request with the help of the Electronic Frontier Foundation, a non-profit organization dedicated to defending “freedoms in the networked world.” Lawyers from the San Francisco-based organization took up indymedia’s cause in February. EFF attorney Kevin Bankston explains what happened next:

This overbroad demand for internet records not only violated federal privacy law but also violated [the site's] First Amendment rights, by ordering her not to disclose the existence of the subpoena without a U.S. attorney’s permission.

Because Indymedia follows EFF’s Best Practices for Online Service Providers and does not keep historical IP logs, there was no information for Indymedia to hand over, and the government withdrew the subpoena…Under pressure from EFF, the government admitted that the subpoena’s gag order had no legal basis, and ultimately chose not to go to court to try to force [Indymedia]’s silence despite earlier threats to do so.

The actions of the Justice Department could trace straight to the top: Attorney General Eric Holder. Department policy regarding journalists states that “no subpoena may be issued to any member of the news media…without the express authorization of the Attorney General.”

The case is the latest in a series of incidents in which government actions that have raised debate about what constitutes journalism in the information age.

Last month, prosecutors in Chicago subpoenaed the notes of journalism students at Northwestern University, who had discovered evidence that raised questions about the innocence of a convicted murderer. The District Attorney‘s office justified the subpoena, saying that the students acted as private investigators, rather than journalists protected by the state’s media shield law.

The actions of federal and local prosecutors carry far reaching implications into how new media is treated in the legal system. The senate can provide some of these answers, as it considers a federal Media Shield Law which Congress passed last spring. The revised bill now extends “coverage to unpaid bloggers engaged in gathering and disseminating news information.” The bill came one step closer to becoming law after the White House voiced its–previously withheld–support last week.

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Media Protection Bill Garners Support from Senate, White House

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Monday, November 2nd, 2009

A bill aimed at striking a balance between the First Amendment and National Security is now one step closer to passage, earning the support of White House and Senate leaders.

The “Media Shield Bill” would protect reporters from disclosing the identity of confidential sources unless it is in the interest of national security. The legislature made sure to involve media leaders in drafting the bill, which in turn has helped to generate support from the industry. As the AP reports:

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press and a member of the media team involved in the negotiations, said they were strongly recommending that the larger media coalition backing reporter protections endorse the agreement.

“I think it is a compromise we can live with and it seems to be a compromise the White House can live with. It’s certainly better than the status quo,” Dalglish said.

The status quo to which Ms. Dalglish refers is the same one that saw former New York Times reporter Judith Miller spend three months in jail for refusing to identify her source in the Valerie Plame leak case. Ms. Miller was freed only after her source, Scooter Libby, Vice-President Dick Cheney‘s Chief of Staff, gave her permission to reveal his identity. Libby would later be jailed himself for the leak before his sentence was communted by then-President George W. Bush.

The bill also makes headway in recognizing new media outlets, extending “coverage to unpaid bloggers engaged in gathering and disseminating news information.” This is a major win for the blogosphere as the legislation would define journalists by the work they produce, rather than the organization that signs their paychecks. This marked a reversal from the bill that reached the Senate in September, when Sen. Charles Schumer (D-NY) specifically excluded protection for bloggers and new media journalists.

The Media Shield Bill hopes to avoid future First Amendment controversies by allowing federal judges to apply a balancing test between the public’s right to know and the government’s duty to protect the public. This balancing test, however, would be dismissed if the government could prove that, “forcing the reporter to identify a source would help prevent or mitigate a future terrorist attack or other future acts that are ‘likely to cause significant and articulable harm to national security.'”

The bill represents the first effort to shield reporters in federal court, although the media has enjoyed such protections in lower courts.

No federal law shields reporters who refuse to disclose confidential sources even though 37 states and the District of Columbia have laws providing legal protection.

The original Media Shield Bill passed the House of Representatives in March, but was stalled in Senate committee after the White House, prosecutors and intelligence advisors expressed concern about the bill’s impact on national security. Friday’s compromise does not guarantee passage, but it does get the ball rolling again.

Ms. Dalglish is not counting her chickens just yet:

“This is a huge deal, but it’s not a done deal, and quite honestly, until all of the media coalition members sign off on it, it’s not a deal.”

The White House is a bit more optimistic:

“We have been engaged with members of the Senate and the media to craft legislation that protects the confidentiality of reporters’ sources and gives the courts the power to decide whether the disclosure of such information is ever necessary in the interests of national security or other imperatives,” [White House spokesman Ben] LaBolt said. “The President looks forward to signing it into law.”

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