Reporters as Co-conspirators

There has been a running commentary on the Justice Department request for telephone numbers of reporters, especially James Rosen, Fox News.  The President indicated he supports the press, which was interesting because it was his Attorney General that signed off on the order.   A subpoena was issued requesting a number of telephone numbers at AP, and Rosen’s was one of them.  The FBI also requested a court order for Google to provide wire and electronic communications for a “national news reporter” whose name and e-mail accounts were redacted, with his name later released.  He was indicted as a co-conspirator in a criminal case, which set off alarm bells in the entire press corps. 

This case is emotional for reporters, because it indicates they are being treated like those who leak classified information to the press, and they don’t like the association.  Legally, nobody challenges the rights of the press, but the definition of who gets to act like Press representatives, has expanded to the point that anyone, including me, can be a journalist.  This is where we seem to have gotten off track.  It wasn’t the Justice Department who got us there. 

Apple vs Does, a California Sixth Circuit case, is old, but interesting from the standpoint of expansion of the “press corps”, and who can publish secrets when they are given to them.  The Electronic Frontier Foundation, among others on both sides, joined in supporting the plaintiffs in this suit.    The quotes are from the actual ruling by the judge in this case. 

“ Petitioner Jason O’Grady declared below that he owns and operates “O‘Grady’s PowerPage” an “online news magazine” devoted to news and information about Apple Macintosh computers and compatible software and hardware. … Over the two years preceding the execution of the declaration….”  It was clear that Apple was looking for the sources of the information they were given and not just a suspension of publication of these types of trade secrets. 

The first article appeared on PowerPage on November 19, 2004, with O’Grady’s byline. It said PowerPage had “got[ten] it’s [sic] hands on this juicy little nugget about a new FireWire breakout box for GarageBand that Apple plans to announce at MacWorld Expo SF 2005 in January.” The article described a device that permitted the user of an Apple computer to record analog audio sources, such as microphones or guitars, using an existing Apple application known as GarageBand, the primary function of which is to facilitate the production of digital audio recordings.

Other articles followed, each with more details.   “According to declarations later filed by Apple investigators, much of the published information appears to have originated in “an electronic presentation file—or ‘slide stack,’ ” generated by Apple and “conspicuously marked as ‘Apple Need-to-Know Confidential.’ ” The investigators note “striking similarities between the Confidential Slides and the articles posted on PowerPage and AppleInsider,”….”  Apple filed to stop these John Does from doing this again, thus the Does in Apple vs Does.  What they objected to, in part, was the idea that the website was a legitimate journalistic pursuit.  The court said it was not going there, and California’s shield law was protecting those who published news.  Apple, the court said, didn’t show reasons for that to not be the case.

“This case raises several novel and important issues affecting the rights of web publishers to resist discovery of unpublished material, and the showing required of an employer who seeks to compel a newsgatherer to identify employees alleged by the employer to have wrongfully disclosed its trade secrets. In part because of these issues and their implications for the privacy of internet communications, the First Amendment status of internet news sites, and the protection of trade secrets, the case has generated widespread interest within the technology sector, the digital information industry, internet content providers, and web and email users. The case also involves an attempt to undermine a claimed constitutional privilege, threatening a harm for which petitioners, if entitled to the privilege, have no adequate remedy at law.” 

By this time, everyone could figure out where this was going. It goes on for another 69 pages, but Apple loses its ability to protect its trade secrets because somebody publishes them on the web. 

Where this really makes a difference is with a site like Wikileaks.  I don’t see this as a journalistic endeavor and can make the same case for the Guardian’s publication of Edward Snowden’s classified secrets.  We have no laws to stop this kind of publishing, and we need a few. 

The press likes the idea of using the First Amendment protection to publish whatever they want, no matter what the damage to our countries.  Most of the major news organizations will make an effort to protect lives and national programs, but some don’t seem to care.  In Wikileaks, the New York Times took the lead in trying to stop some of the information being leaked, to protect the sources of that information.  They want to ignore the death of an athletic coach referred to in one of the cables, and pretend that the publication had nothing to do with it. 

The difference is the newspapers handling the Wikileaks disclosures were professional organizations with experienced members of the press.  We have no idea who runs the websites of the world, and almost anyone can register one and start an “on-line newspaper”.  Our legitimate press has some idea of the damage that can come from publishing secrets, and so do the intelligence services of other countries; we could easily imagine their involvement in some of these releases, especially those of Snowden. 

Washington can make laws for anything and everything, so why not limit the ability of people who aren’t really journalists to publish National Security Secrets?  The British do it with their Official Secrets Act, something worth thinking about. 

You can read more about people who give up secrets in Keeping Secrets, The White House, the Military and Business Leaks that Threaten our National Security