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MEDIA NOTES
Police, court deny journalist protection for bloggers
By Jon Gingerich
Aseries of recent legal and criminal
inquiries have stoked the debate as
to whether bloggers should be treated
as equal to print, TV or online journalists.
In one case, authorities revoked a blogger’s
rights to newsgathering materials, an
act experts claim is illegal under the
Privacy Protection Act. In another separate
case, courts ruled that bloggers are not protected
by the same shield laws that immunize
journalists from divulging their confidential
sources.
Police in April raided the Fremont, CA
home of Gizmodo Editor Jason Chen, seizing
personal computers as well as hard
drives and a digital camera. Chen had
weeks previously landed a scoop in the blogosphere
when he published an exposé
detailing the prototype of a new, yet-to-bereleased
model of Apple’s iPhone, complete
with photos.
The story came under dubious circumstances.
Chen allegedly obtained the phone
U.S. newspapers
continue decline
U.S. weekday newspaper circulation
fell by nearly 9% between
Oct.’09 and March ’10, with
Sunday editions falling 6.5%, according
to data released in April by the Audit
Bureau of Circulations.
The figures are actually a slight
improvement from newspaper losses at
this time last year, when weekday newspaper
circulation dropped 10.6% from
the year before and Sunday circulation
fell 7.5%.
Several top U.S. daily publications
have continued experiencing serious circulation
losses within the past year, with
notable examples including the San
Francisco Chronicle, which lost nearly
23% of its subscribers, USA Today,
which lost 13.6% of its readers and the
Washington Post, which lost 13%.
The New York Times fared slightly
better, experiencing an 8.5% decline in
weekday subscribers and a 5.2% decline
in Sunday editions.
According to an AP report on the
ABC findings, these numbers now give
the Wall Street Journal the largest circulation
of any newspaper in the United
States.
by paying an undisclosed third party
$5,000. The seller, whom Chen has so far
refused to identify, claims the phone was
found at a bar in nearby Redwood City.
The story was enough to catch the ire of
Apple, a company that enacts notoriously
iron-fisted research and development policies.
The company’s lawyers contacted
Gizmodo, and the blog eventually returned
the iPhone. Gizmodo claims it had previously
tried to give the phone back to Apple
but received no response.
Chen has not been arrested for any crime.
Lucy Dalglish, Executive Director for The
Reporters Committee for Freedom of the
Press, said that if police were not investigating
Chen for breaking the law, their search
warrant is illegal and they didn’t have the
right to confiscate his personal property.
Specifically, the property seizure was a
violation of the Privacy Protection Act of
1980, which protects news gatherers from
being searched and having the materials
they use to present a story (in this case, an
iPhone) confiscated.
“This was a screw up and they’re getting
very defensive about it. Congress passed a
law 30 years ago to protect journalists
against these circumstances, and thankfully
(Chen) has a very good lawyer,” she said.
“Search warrants are not used for civil procedural
matters, they’re used for criminal
matters. There’s no First Amendment right
not to be searched. In a situation like this
there’s a Federal law that says if you want
news gathering materials, you need to supply
a subpoena.”
In a letter to authorities, Gawker Chief
Operating Officer Gaby Darbyshire reiterated
the claim, stating that under both “state
and Federal law, a search warrant may not
be validly issued to confiscate the property
of a journalist.” She referred to Chen as “a
journalist who works full time for our company.”
Gizmodo is owned by Gawker Media.
Dalglish said the only time the Privacy
Protection Act does not protect journalists
against search and seizure is under “very
narrow circumstances” where a journalist is
considered the perpetrator in a criminal act.
If authorities believe Chen committed a
criminal act in the course of acquiring the
phone, experts have speculated that Chen’s
profession as a journalist may not be called
into question as much as whether he knowingly
received stolen property, in which
case its use would be rendered immaterial.
This could prove to be a pointless debate
however, as the warrant used to search
Chen’s home did not reveal him as a suspect
in a criminal act.
“The only way you could get a search
warrant is if it’s criminal, so clearly they
believed a felony has been committed,
though it’s unclear what the charge is,” said
Matt Zimmerman, Senior Staff Attorney at
the Electronic Frontier Foundation. “The
short version here is there’s a California
penal code which is very broad that prohibits
law enforcement from getting this
information from journalists.”
Shield law shuns blogger
Although incorrectly stated in more than
one recent news report, Chen’s ordeal currently
has no applicability under current
shield laws, which is legislation that effectively
strips journalists of any legal obligation
to reveal their sources under subpoena.
Shield laws vary state-by-state (there is
currently a proposed Federal law on the
floor of the U.S. Senate). Under California
state law, Chen may invoke this privilege if
asked to reveal the identity of the individual
who sold him the phone, though no case
has gone to court and such scenarios have
not been entertained publicly.
On the other hand, a New Jersey appeals
court in April ruled that bloggers can’t
invoke the same confidentiality privileges
as the press simply because they claim to be
“journalists.”
In this case, Washington State native
Shelle Hale was sued for defamation by
porn software provider Too Much Media
when she publicly accused the company of
fraud, among other ethical violations, on
industry news blog oprano.com.
Hale later claimed her statements were
the result of quotes procured from competent
sources, and were divulged for the purpose
of informing the public.
When Too Much Media’s lawyers
planned on deposing her sources, Hale
moved to New Jersey in order to take
advantage of the state’s existing shield
laws, and set up a “news” web site to further
her standing as a journalist (the site did
not feature any content).
In its ruling, the court stated that Hale
“exhibited none of the recognized qualities
or characteristics traditionally associated
with the news process, nor has she demonstrated
an established connection or affiliation
with any news entity.”
Too Much Media’s attorney Joel
Kreizman went a step further:
“Some people regard the Internet as the
Wild West but there are some rules that
apply. The shield law is limited to members
of the media, not pretenders or
wannabes.”
8 MAY 2010 WWW.ODWYERPR.COM