Finals Week :(

I know, I know, so much has happened in the last few weeks!!!!

It is finals week, sadly, and my posting has been less than consistent. My apologies to those who have written.

No, the site has not gone "cold." I'll be back up and running in a few days.

The good news: THE SHIELD LAW PASSED THE SENATE COMMITTEE ON THE JUDICIARY!!!!!!!!!!!!!!!!!!!!!

New Hampshire Supreme Court Hears Blogger Anonymity Case

The New Hampshire Supreme Court heard oral arguments this month in the case of Mortgage Lender Implode-O-Meter v. Mortgage Specialists Inc. For a great background on the case, read this ARTICLE. Quickly, Implode is a Web site that Chronicles the mortgage crisis. In 2008, Mortgage Specialists were awarded with an injunction that required Implode to take down the "2007 Loan Chart" that had been published on the site. The chart was first published by an anonymous commenter, writing under the pseudonym Brianbattersby.

Essentially, the New Hampshire Supreme Court will have to decide two questions: 1) Who is a Journalist? 2) What standard will the state adopt to decide when an anonymous blogger / commenter's identity can be revealed via subpoena?

As stated by Sam Bayard of the Citizen Media Law Project, this case could have "a big impact" on this emerging area of law.

First. When deciding who to consider a journalist, I would have the New Hampshire Supreme Court look to the underlying purpose of Brianbattersby's posting. If the anonymous commenter posted the "2007 loan chart" in attempt to disseminate information of public concern, the court may very well consider the commenter a journalist. However, the court should also examine how the anonymous commenter received or acquired the information. For this purpose, the court could ask the commenter to send affidavits or appear in camera, as to protect his or her identity. If the anonymous poster acquired this information with the intent to distribute it, as a journalist would, then it certainly quacks like a duck. If the anonymous poster is, say, an employee of the Mortgage Specialists, and acquired the information as part of his/her duties, then that person would not have acquired the information with the intent to disseminate it, thus making the "journalist" defamation unavailable.

Second. As for the second question, the court must be mindful of the strong constitutional protections assuring individuals' right to speak anonymously. Whether the court chooses to adopt the Cahil standard or the Dendrite standard, in my opinion, is one of preference. The court, nor any court, should adopt the "good faith" standard articulated by Virginia's high court. Such an approach does not adequately recognize individuals' right to speak anonymously and have their identity remain anonymous.

Justice Department Subpoenas Web Site for Viewers' Information

I actually had to read this story twice.

On June 25, 2008, U.S. Attorney Tim Morrison issued a subpoena to Indymedia demanding that the website turn over all information relating to "IP traffic to and from" the website. The subpoena was subsequently rescinded with a one-sentence letter issued in February 2009. What's worse, the Justice Department put a gag on Indymedia, requiring that the Web site's officials "not to disclose the existence of this request" unless authorized by the Justice Department.

First. The well written CBS article (authored by Declan McCullagh) noted that it seems that the Justice Department violated its own guidelines by not going through the stated approval process required before sending a subpoena to media organizations. If some over-anxious junior prosecutor did, in fact, issue this subpoena without the approval of superiors, it is difficult to lay the blame on the Justice Department as a whole. However, it is, at the least, probative of the attitudes of some prosecutors. This subpoena shows a complete lack of regard for the fourth estate's purpose in providing a free, open, and robust media.

Second. Issuing a subpoena for all Web traffic going to and from a particular website, any website cannot be permitted to stand. If individuals knew that their personal information would be accessible to government officials by merely landing on a particular Web site, people would limit themselves to only those websites that espouse a politically approved message. Nothing could be more hurtful to the wide expression of diverse view points. Prosecutors here either did not have the foresight to realize this concern, or simply did not care.

Third. In addition to the effect this subpoena, if duplicated, may have on speech, it raises some interesting freedom of association questions. By visiting certain Web sites, individuals may be tacitly 'voting' for that site's message or content. If that is the case, than subpoenaing identifying information, as was done here, would provide a strong disincentive to associate with legal, but politically marginal groups.

Online Media Legal Network, You're My Hero

The Citizens Media Law Project (CMLP) has begun the Online Media Legal Network (OMLN). The OMLN "is a legal referral service that connects qualifying online journalism ventures and digital media creators with lawyers willing to provide legal services on a pro bono or reduced-fee basis."

Essentially, the OMLN is going to offer bloggers, citizen journalists, and the rest of the digital gum-shoe community free legal help. The group has put together a list of some of the countries most prestigious attorneys and law firms that are willing, for free, to defend bloggers, online commenters, citizen journalists, and the like against a "broad range of legal issues, including business formation and governance, copyright licensing and fair use, access to government information, pre-publication review of content, and representation in litigation."

I thought I liked the CMLP before. Now, I'm in love with them. Throughout my many posts, I have noted that the real chilling effect on Internet speech that occurs when an online commenter or anonymous blogger gets sued is not that they may loose their case. Rather, the chilling effect is the threat of having to pay for an attorney to defend them in court.

The OMLN may be the single best thing to have happened to Internet speech since the keyboard. Finally, the lowly blogger or poor (financially) citizen journalist will be able to put up a decent fight against unwarranted government subpoenas fishing for information.

Bravo.

Shield Law Stuck in the Mud

Yet again, the Senate Committee on the Judiciary has failed to bring the federal shield law to a vote. Early this week, there were reports that today was the day the committee would approve the bill and send it to the full Senate for final vote.

According to Broadcasting and Cable, Senator Patrick Leahy (D-VT) was unable to put the bill for a committee vote because "Republicans had numerous amendments lined up that would have to be introduced and debated and voted on" before the Yay's and Nay's could be tallied.

The longer the bill sits in committee, the more steam it looses. Atop this slowing momentum is Senator Diane Feinstein's (D-Calif.) continuing opposition to the bill's "definition of journalist, which she thought was still too broad." It's not looking good for the shield law . . .

NPR Story on the Shield Law II: On The Media

As I've stated before, NPR's coverage of the federal shield law saga is great.

Another audio bit from NPR's On The Media program.

The Shape of Things to Come: News Sites Forced to Choose the Lesser Evil

This may be old news, but the underlying current is still relevant.

Knoxnews, an online news publication that focuses on the Knoxville, Tennessee area, released the identifying information of an anonymous commenter. The news site stated that it released the commenter's information in the face of a subpoena because "the request was not overly broad; in fact, it was quite specific. It dealt with a criminal investigation, not a civil case. And, the subpoena came from a federal grand jury. We might very well have lost if we had argued in court."

In a semi-apologetic statement, Knoxnews stated that "we almost always resist subpoenas for information when we get them. Often attorneys are fishing, and they ask for all our notes, records, etc. Using the Tennessee Shield Law, we are typically able to quash those subpoenas and end up merely submitting an affidavit saying that what we published in the paper was factual to the best of our knowledge." However, as the cite explained, this case was not worth defending. According to the RCFP, "the FBI requested the information as part of an investigation into reported death threats made against defense attorneys for the alleged ringleader of a January 2007 carjacking and double murder of a young local couple."

The Knoxnews story is exemplary of the internal struggle haunting newsroom discussions now-a-days. On the one hand, newsmen want to encourage discussion among the populous through online comments. They want people to comment on stories in order to further public discourse and, of course, drive up ad revenue. (You cant comment on a story until you read it, and you cant read a story without being pelted with web ads.) But, at the same time, news editors are being inundated with subpoenas from overzealous prosecutors who want a quick and easy way to gain information.

In effort to appear cooperative with these prosecutors, newsrooms are beginning to make value judgements. Instead of simply stating that a subpoena against a newsroom for a commenter's identifying information is improper, they are now deciding which subpoenas are worse than others.

I do not fault Knoxnews. If local prosecutors begin to see news sites as antagonistic to the judicial process, all semblance of the division between the press and the justice system will fade. Moreover, Web cites cannot afford to defend every the anonymity of every commenter against subpoenas. Instead, I would place the blame on prosecutors. This case describes the current of cases where prosecutors are relying on the press to do their job for them. The reason the FBI issued this subpoena may have some merits, but that does not mean they should rely on the press to further their investigations.

Many prosecutors assume that if they issue a subpoena, in a worst case scenario, their demand will be turned down. However, prosecutors should realize that with each subpoena they are dropping the temperature of public discourse on issues of public concern.