A worm in the core
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, “You want to continue down the path of a mature society? Well, you’re going to have to walk through this minefield in order to do it. Good luck.”
While there are several important questions on our plate, all of which seemed to be served to us by technology, the one that I’d like to bite into is the question of whether a blogger is a journalist.
The civil case, Apple Computers Inc. v. Does, has made us face up to this question, and therein lay the difficulty I mentioned a moment ago. The facts of the case are such that the bloggers are in the wrong; that is, they do not deserve the journalistic privilege that they claim, for reasons I will soon explain. At the same time, I support the bloggers’ claim that, despite the fact that they are bloggers, they are also journalists, again, for reasons I will have to explain.
Apple Computers Inc. v. Does
The following information is a partial summary of the civil case, Apple Computers Inc. v. Does. It is only a partial summary because there are several arguments made throughout the case that go beyond the scope of this paper (all of the arguments relating to the federal Stored Communications Act [SCA], for example). I’ve compiled this information using the legal documents filed in the case, all of which are available on the Web site of the Electronic Frontier Foundation (EFF). Because this summary is a compendium of that information, I will not be citing which document provided what specific information, except when I am quoting a specific document.
Between November 19th and November 26th of 2004, information about an unannounced Apple product showed up on three different Web sites: O’Grady’s PowerPage, Apple Insider, and Think Secret. The product, code-named Asteroid, was reported to be a product that would allow musicians to plug their instruments directly into their Macintosh computer for purposes of recording and editing audio. The reports were accompanied by artist renderings of the product.
In early December, Apple filed suit against 25 unknowns defendants (John Does 1-25), and requested leave to issue subpoenas to the three Web sites (hereafter, the movants) in order to determine the identity of the defendants. They wanted the movants to give up any information relating to the identity of their confidential sources, all of whom, according to Apple’s allegations, must have broken a non-disclosure agreement: “This information could only have been obtained through a breach of an Apple confidentiality agreement,” though Apple also admitted that the information could have come through theft or espionage. Apple sought the subpoenas “in an effort to identify the person or persons who have misappropriated Apple’s trade secrets and to serve them with a Complaint.”
The movants filed a motion of protective order, arguing that, as journalists, they had the right to protect their sources, a right provided by Article 1, section 2(b) of the California Constitution (the state in which the complaint was filed) and in the First Amendment to the U.S. Constitution.
In regards to the protection offered to journalists, the California Constitution states:
A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
The portion of the U.S. Constitution that protects reporters is in the First Amendment: “Congress shall make no law…abridging…the freedom of…the press.” In “A Memorandum of Points and Authorities in Support of Non-Party Journalists’ Motion for Protective Order,” the Electronic Frontier Foundation, et al. (hereafter, EFF) quote federal Judge J. Skelley Wright’s summation of the First Amendment’s protection of journalists:
The First Amendment…guarantees a free press primarily because of the important role it can play as ‘a vital source of public information.’…Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.
In response to this memorandum, Apple filed an opposition that argued against the request for protection, asserting, among other things, that neither of the constitutions protect individuals who steal trade secrets: “[Trade] secrets are constitutionally protected property interests, and the acquisition and dissemination of such secrets are subject to both civil remedies as well as criminal penalties.”
While Apple also asserted that movants are not “legitimate members of the press,” and therefore do not deserve journalistic privilege, the strength of its argument is not in the status of the movants but rather in the designation of the information as a trade secret, which is protected under California’s version of the Universal Trade Secrets Act (UTSA).
The Superior Court judge, the Honorable James P. Kleinberg, found as much in his decision, saying about the movants: “Whether [they] fit the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: these is no license conferred on anyone to violate valid criminal laws [such as the UTSA].” Justice Kleinberg further stated that the protective privilege offered to journalists is meant to defend the public interest, and not the interested public, and that the movants had not shown why the public had the right to know private and secrete information of a business entity. The Court said:
Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, the movants are doing nothing more than feeding the public’s insatiable desire for information.
On March 22nd, the movants appealed the court’s decision, saying that the issue is not the merits of Apple’s trade secret claim, but rather “whether Apple may run roughshod over the reporter’s privilege and the reporter’s shield in its eagerness to obtain evidence.” And because the subpoena attempts to discover the appropriate digital files from Power Page’s communications service provider, NFox, the movants also appealed based on the SCA, which “prohibits any civil discovery of the content of electronic communications directly from communication service providers.”
In early April, the mainstream media came out of the woodwork to file an amicus brief on behalf of the movants. These media outlets and interests included the Reporters Committee on for the Freedom of the Press, the Associated Press, the California First Amendment Coalition, the California Newspaper Publishers Association, the Copley Press, Freedom Communications Inc., the Hearst Corporation, Los Angeles Times Communications Inc., The McClatchey Company, the San Jose Mercury News, the Society of Professional Journalists, and the Student Press Law Center; they were later joined by the Bear Flag League (a league of Californian bloggers), the ACLU, and a whole slew of online journalists and organizations (hereafter, all of these groups will be considered as the Amici; the US Internet Industry Association and NetCoalition also filed a brief, but their argument concerns the Stored Communications Act, which is not at issue in this paper).
The Amici were interested in the case for obvious reasons, but specifically for:
…ensuring the free flow of information on matters of public importance and interest by preserving the news media’s ability to pursue its constitutionally protected freedom to gather and report the news, free from intrusion by the government or other litigants.
While the Amici made several arguments in favor of protecting the confidentiality of a journalists’ sources (all of which I agree with), it seems to me that at issue is not the protection of the privilege, but whether that privilege extends to the publication of a trade secret, and whether that trade secret is of vital importance to the public. On that issue, the Amici wrote that:
The information the non-party journalists reported was on a matter of public concern…Presumably, the plaintiff will issue press releases when it announces the product in hopes that the news media will report on the product. The issue in this case is not whether the information published by the nonparty journalists is newsworthy; the plaintiff is upset rather at when the newsworthy information was released… It is for the news media to decide, not the plaintiff or the courts, when information becomes newsworthy.
They also argued that what at issue is not a trade secret. The trade secret in this case would amount to the technological details that are at the heart of the product, and not the existence of the product itself. The Superior Court compared this case to DVD Copy Control Association v. Bunner, in which the defendant had posted the code of a DVD de-encryption program (DeCSS) to his Web site. The Amici held that:
DeCSS was not posted as news; it was posted as a tool. In this case, the information at issue…was posted as news…In Bunner, the Copy Control Association would not have made its trade secrets public at any time. [while Apple] obviously would have made the information…public when it announced the product.
In their response to the appeal, Apple held that they “carefully safeguard information regarding…future products” in order to “time product launches to maximize publicity and goodwill. Disclosure of this confidential information to competitors and the general public greatly harms Apple because it enables those competitors to direct their marketing and development efforts at frustrating Apple’s plans.”
A quick look at Apple’s history — using Microsoft’s “theft” of the Macintosh graphical user interface as the guiding example — will show just how valuable its trade secrets are. Furthermore, it could be easily argued that a large percentage of the value of most Apple products is in their design, and that many of their competitors mimic those designs. The articles published on the Web sites contained artist renderings, which could have given the company’s competitors a head start and even offered the competitors a chance to beat them to market. Imagine if the design of the iPod had been leaked prior to its announcement: the design is arguably the number one reason why the product has been so successful.
Regarding all the hullabaloo about who is and who is not a journalist, Apple makes clear in its opposition that all the debate is moot because “This is a trade secret case…[R]egardless of their claims to be journalists, the dissemination of verbatim copies of Apple’s confidential, proprietary information is not legitimate journalism or news, it is trade secret misappropriation.”
The case, in fact, has become more than a trade secret case. In the appeal, the movants brought up the SCA to prevent Apple from acquiring the e-mails that contained Apple’s trade secrets and that were sent to PowerPage and stored on the servers of PowerPage’s communications provider, NFox. As I wrote above, that issue is outside the scope of this paper.
To me, this is a terrible case for the media to have embraced as the defining case of bloggers’ rights as journalists. Regardless of where the information was published or what medium was used to publish it or what the status of the publisher’s identity is, the information published in this case does not serve the public good. If the NY Times had published the information, I would still agree wholeheartedly with the opinion of the Superior Court judge:
Movants did not present a persuasive reason of “public good” and never answered the Court’s inquiry as to why there was a true public benefit from disclosure…At the hearing, the Court specifically asked what public interest was served…Movants’ response was to again reiterate the self-evident interest of the public in Apple, rather than justifying why citizens have a right to know the private and secret information of a business entity…[T]he movants are doing nothing more than feeding the public’s insatiable desire for information.
Because the movants were not serving the public good, I don’t believe they deserve protection by the journalistic shield laws.
Are these bloggers journalists?
With that being said, the sexy part of this civil case was not a question of what it means to publish a trade secret. The prestigious people and organizations who made up the Amici weren’t motivated by a need to protect their right to publish trade secrets, but rather by the need to protect the journalist’s privilege to protect the identity of confidential sources. On this point, the civil case may be far-reaching in its definition of the term “journalist.” The strange thing is that, even though Justice Kleinberg had explicitly stated that this case has nothing to do with how the movants are defined, most of the arguments filed by the Amici focused on this particular issue. Because of the overwhelming interest, Apple had, in its turn, found itself arguing against defining the movants as journalists. I will follow the thread of this argument as it pertains to this specific case.
In Apple’s original complaint and in its supplement, the movants were known only as “the three websites.” It wasn’t until the movants motion for protective order that the individual movants (Jason O’Grady, Monish Bhatia, and Kasper Jade) were characterized under the term “the Non-Party Journalists” (“non-party” because none of the individuals were named as defendants in Apple’s claim).
In the second paragraph of the motion, the movants asserted their identity as journalists: “Good cause exists to grant the motion…for protective order because their sources and unpublished information are protected under the reporter’s shield…” The actual argument about why the movants should be considered journalists first appeared in the motion’s accompanying memorandum of points:
The reporter’s privilege applies to online publication and print publication equally. Both print magazines and online magazines share the essential characteristics of journalism, especially as more and more news publications are exclusively online…Indeed, online news sources are often the place where news first breaks, before traditional journalists get the story…Moreover, coverage by online news periodicals has made important contributions to public debate.
The motion included declarations from two recognized experts in journalism, Dan Gillmor and Professor Thomas Goldstein. Mr. Gillmor, an expert in online and technology journalism, said, “The fact that the news content…is published on the Internet…is of no account [here]. It is not the medium, but the nature of the content and the process resulting in that content that are decisive.” Speaking about the movants’ sites specifically, Professor Goldstein added:
What [they] do is journalism—seeking out accurate information, and presenting it to their audiences. Just because Apple does not want these publications to report on its activities does not mean that they are not news publications. If they published only stories sanctioned by Apple at times approved by Apple, they would not be practicing journalism but marketing.
Earlier in his declaration, Professor Goldstein defined a news entity as, in part, “a stable public identity” that an audience can learn to trust. Since the movants have been publishing since at least 1998, Professor Goldstein concludes:
[The sites] are continuing journalistic enterprises with a stable public identity, no different than a newspaper or magazine. They are not evanescent, one-time-only postings on the Internet. Over time these publications have established a track record, reputation, and identity with their audiences.
Apple’s responded: “Regularly publishing information without fact checking, accepting wholesale, anonymous postings and systematically disseminating trade secrets do not constitute investigative reporting.” Because the sites did not serve an “investigative reporting” function, as required by the California Shield Law, they were not “legitimate members of the press.” Further, the Shield Law enumerates exactly who may evoke it: a “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publications, or by a press association or wire service,” and a later paragraph includes a “radio or television news reporter.” Bloggers are noticeably absent from that list. In a previous case (Delaney v. Superior Court), the Court refused to expand that list “beyond its express terms.” The professional classes the legislature included in this list “reflects the professional standards that define those classes.”
As regards those standards, Apple’s argument used the Society of Professional Journalists’ Code of Ethics to show that “an examination of the website shows that its general practice is to publish information without the verification and investigation that are the essential hallmarks of journalism…Instead, [the movants] slavishly copied the contents of a trade secret Apple document…The verbatim publication of such information is not journalism…”
In their reply to the opposition, the movants claimed that they fell within the professional class enumerated within the Shield Law, specifically within the phrase “other periodical publications,” since the sites published their articles on a regular, periodical basis. Further, the information they gathered was always for public dissemination, which meets a test (the Schoen test: “The test . . . is whether the person seeking to invoke the Privilege had ‘the intent to use material—sought, gathered or received—to disseminate information to the public and [whether] such intent existed at the inception of the newsgathering process.’”) used by the courts to determine whether the information gathering was the work of a journalist. The reply also questioned Apple’s use of the Society of Professional Journalists’ Code of Ethics as a standard that all journalists must follow. Instead, the movants refer to the expert testimony of Mr. Gillmor and Professor Goldstein, both of whom declared that the movants were journalists.
With Mr. Gillmor, Professor Goldstein, and all of the Amici, I also hold that the movants are journalists. Whether they are good journalists is a question for another day, but they are journalists nonetheless. For the following reasons:
- They maintain a stable identity that allows its audience to determine the sites’ authority. The sites receive hundreds of thousands of hits a month. The popularity shows the audience’s trust (or at least, interest) in the information provided by the sites.
- The sites obviously serve an “investigative reporting function,” otherwise they never would be in this mess.
- As for Apple’s characterization of the movants’ process as nothing more than “slavish copying,” it would be difficult to show that many reporters in the White House Press Corps do anything more substantial than serve as a marketing team for the White House, slavishly copying its words into “news reports.”
In an article about a blogger serving in the White House Press Corps and asking his first question about preemptive warm, a regular White House reporter writes, “It’s a good question…It’s also precisely the kind of question your typical full-time White House correspondent doesn’t ask anymore — because there’s simply no point. You’re not going to get an answer.” Now that’s the kind of aggressive attitude we love to see in our governmental watchdogs!
As noted earlier, the Superior Court found in favor of Apple, but it neglected to answer the question of whether the movants were journalists. The movants appealed the ruling and the Amici filed several briefs in favor the movants, asserting that the movants are journalists and that they deserve to be protected by the Shield Law.
Again, I don’t support the movants use of journalistic privilege in this particular case, nor would I support the motion if an established news entity such as the NY Times were the movants. The information at issue — explanations and artist renderings of an unannounced and trade-secret protected Apple product, Asteroid — is not of vital interest to the public, and that is the worm at the core of the movants’ argument.
The closest anyone could come to suggesting that the public has a right to know about the existence of this product is found in Judge Wright’s sentence, “Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices [emphasis added].” In this case, the unfettered press gave musicians information that might have influenced whether they purchased a Macintosh computer or a peripheral product akin to Asteroid. While beneficial and interesting, such information is hardly within the public’s right to know.
As one commenter on a well-known blog put it:
The point is, this is not a case of Apple putting some toxic chemical in their keyboards, or hiding monopolist behavior…Someone who knew that many details, and was leaking it to a rumor site in such detail, has no doubt broken his confidentiality agreement, and may well be leaking similar secrets to…competitors…Apple has a legitimate right to know who did this, and the “journalists,” because they’re doing nothing to further the public interest, have no right to their privilege…Not every case like this is another Pentagon Papers.
It’s my turn
With that comment, we will switch our discussion a little bit. We will walk away from the Apple Computers Inc. v. Does case and discuss some hypothetical case of the sort that will almost certainly arise in the future and force us (if Apple v. Does doesn’t decide it) to determine what it means to be a journalist. I’m going to use this blog as an example, since it attempts to reach different audiences with different posts. It differs from the websites of the movants in Apple v. Does in several ways, but most important to our discussion, I have yet to describe anything I’ve posted on it as investigative reporting for a news entity. With that being said, I frequently write about current affairs, politics, and our nation’s foreign policy.
Now, let’s set up the detail of this hypothetical.
In 2003, General Electric (GE) had $2.8 billion in government contracts, which is to say that it isn’t out of the realm of possibility that someone at GE might come into contact with some information that both GE and the U.S. government want to remain secret.
Now imagine that a person (let’s call him Mr. X) has some information regarding a large government order of jet engines that would only be useful in a jungle environment. Mr. X realizes that the order is only strong circumstantial evidence, but it points toward a large military operation whose the most potential target is North Korea. Let’s say Mr. X resented the way the Bush Administration lied to the public before the Iraq war, and as a democratic-minded patriot, he wants to make sure that the Executive Branch doesn’t deceive the public, to whom it is beholden, ever again. For that reason, he decides to release the information about the suspiciously large order.
Mr. X contacts his local news channel, but their legal department won’t let them touch it for fear of GE’s lawyers. He calls the major networks, but when he refuses to appear on camera (he wants to keep his job), they also step away from the story (see The Insider for a similar story).
By this time, GE is aware that they have a leak. They contact all the major news organizations (not difficult in this age of consolidation) and threaten a lawsuit if any of them run with the story.
Then one night, while sitting in a bar with some of his work buddies, Mr. X meets my father. My father is a retired engineer of jet engines for GE. He still works for them on a contract basis (as do many of their retirees) and he still maintains friendships and visits bars with many of the individuals he worked with over his 30+ years of employment. Someone at the bar mentions something about blogging and my father starts talking about how his son has been getting a lot of hits on his blog lately (this is a hypothetical, remember?). Mr. X’s ears perk up.
Later that evening, Mr. X googles my name, finds my blog, and then my e-mail address. He contacts me through e-mail, later through instant messenger, and once over the phone. By the end of all of our discussions, he’s earned my trust and provided enough information, including a photocopy of the front page of the contract, for me to write an informative post about the government’s order.
And that’s exactly what I do.
My post has physical evidence (images of it, anyway) and quotes from an inside, though anonymous, source. Throughout the post, I stress the fact that the information only comes from one source, but I also confirm that he works inside GE. For most of the piece, my tone and word choice remains balanced, but in the last two paragraphs, I condemn the government for acting, once again, in secret.
I also use all of my Web marketing skills to spread the word about the post, starting with posting comments about it on all the major political blogs. After less than 3 hours, the post has over 4,000 hits. After 6 hours, 10,000 hits. By the time hour ten comes along, I’m receiving phone calls from the major networks; now that the story is public, they’re no longer afraid of it. In the eleventh hour, lawyers for GE fax me a cease-and-desist letter. I refuse. A U.S. attorney sends me a cease-and-desist letter. I refuse again. The government contacts my Web hosting service and has me shut down for disseminating confidential information.
The next morning, the U.S. attorney files charges against Mr. X and requests a subpoena for access to my computer and my communications providers’ servers in order to ascertain the identity of Mr. X. I call the ACLU and EFF to ask for representation. My new lawyers immediately ask for a protective order against the subpoenas, claiming that I deserve the journalistic privilege of protecting my sources.
Am I a journalist?
I would like to suggest that this is the wrong question to ask — and it is a question that could many in trouble. The nature of blogging is such that a blog will often consist of posts that range over a wide variety of topics. I read several blogs that, while mostly focused on a particular industry or category, regularly publish posts that only fall under the category of “miscellaneous.”
Nothing that appeared on Fluid Imagination prior to the Mr. X post could be considered journalism. Does that mean that the Mr. X post is less newsworthy than what my hometown paper prints about how to take advantage of their “edible lawn,” or less deserving of being called journalism than, say, what People magazine is printing about Brad Pitt and Angelina Jolie?
I content that, instead of asking if a blogger is a journalist, we should be asking, “Is this blog entry a piece of journalism?”
I don’t know exactly what the test would be for that (I’m just a blogger, after all), but I’m sure the journalist associations could work with the courts to come up with some sort of test. This test could then be made public (using the blogosphere itself) and it would then it be up to the bloggers to decide whether what we write for a particular post will conform to the test; of course, those who have no knowledge of the test could still file motions that appeal to it.
By focusing on the whole blog or the blogger, we make the mistake of thinking under old paradigms, which allows a worm to live at the core of our civil rights. The strength of the Internet in general, and the blogosphere in particular, is that ANYONE can post news at ANY TIME. We no longer have to wait for “the authorities” to tell us what the news is and when it matters. Individual citizens now have the power that only “journalists” used to have. With that power, they should be given the protection (and the responsibility) that comes with it.
A legal test that focuses only on the merits of the post in question is the best way to both, protect all of our First Amendment rights and maintain the social order that allows individuals, entities, and governments to operate without undue fear of unjustified accusations.
So, in the hypothetical case discussed above, does Mr. X’s identity deserve to be protected under a journalist’s Shield Law?
The answer can only be “Yes, it does.”