Court Invalidates Key Patent Claims In Acacia's Streaming Media Patent

Obama Administration: Shield Law Should Only Protect Journalists If We Don't Care About The Story

from the um...-wait-a-second... dept

Fri, Oct 2nd 2009 1:32am — Mike Masnick

We already found it quite troubling that the Senate committee, working on a federal "shield law" that would help protect journalists from having to reveal their sources, switched from language that was pretty inclusive, to a bill that would greatly limit the definition of a journalist to only those who work for big time journalistic endeavors. Lots of smaller, independent or amateur journalists would get no protection at all. Sen. Chuck Schumer, a sponsor of the bill, was apparently responsible for kicking out all those independent journalists. In looking into why, Jason Linkins, was told that the Justice Department was apparently worried that everyone would just start claiming shield protection, and it would greatly limit their ability to investigate certain issues. That's a stretch, however. The law clearly could have been written in a way that would enable investigations, without removing protections over legitimate journalistic activity.

Either way, it might not matter at all. Apparently, even after all this, the Obama administration is asking for more concessions, such as not allowing any shield protection on any instance where the administration declares that the matter involves "significant" harm to national security. Now, you can understand why the administration would want that, but there's absolutely no oversight. Basically, under the administration's proposal, if the administration simply said there was such harm, the judge would immediately wipe out the shield.

If you want to create a chilling effect against any sort of whistleblowing on gov't corruption, that's what this proposal does. It basically lets the gov't say that the shield law only applies to whistleblowing that doesn't make the administration look bad. But, in any case where the administration isn't happy, it gets to wipe out the shield. Apparently, freedom of the press only applies to situations in which the administration is not embarrassed.

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Filed Under: journalism, national security, obama administration, shield law

46 Comments

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DS, 2 Oct 2009 @ 3:33am

Nooo, can't be... don't you remember? Change? Hope? Come on... let's all sing, Change Hope New Boss as bad as the Old Boss...

Wait, how did that last part slip in?
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- anon, 3 Oct 2009 @ 8:07pm
  
  Re:
  there is change it's just a black man doing some of the things the white man before him was doing and in some cases privacy doing worse. what you thought that a politician who came from the most apparently openly corrupt state of the country wouldn't be corrupt himself.
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zellamayzao, 2 Oct 2009 @ 4:39am

Its amazing....
just what this administration is able to get away with. Hope, change, transparency I can see was all just a cheap line sold to a country who had the wool pulled over its eyes. Now Im not saying what the previous admin did was completely right all the time and never did any shady work or had some messed up policies. Im just saying that people should be a little more outraged at the crap they are trying to get away with because he is who he is and thats a democrat.

Not trying to start a war about dems and repubs just pointing out that this admin does pretty much whatever they want with little opposition. And the whole point of free speech and freedom of the press is to be able to print for the USA to see that the government is full of crooks and cheats. Not be able to pull the "national security" card every time they are gonna be found out to be just what they all are.....evil, crooked men/women who only care about lining their own pockets.
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- Mike Masnick (profile), 2 Oct 2009 @ 4:43am
  
  Re: Its amazing....
  Not trying to start a war about dems and repubs just pointing out that this admin does pretty much whatever they want with little opposition.
  
  To be fair, the last administration was just as bad, if not worse. It didn't want any shield law.
  
  So if you must compare the two, the Obama administration is at least open to some shield law.
  
  It's not a Dem or Repub thing. It's a politician and power thing.
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  - zellamayzao, 2 Oct 2009 @ 5:24am
    
    Re: Re: Its amazing....
    Okay, I see your point, I guess some is better than none. But, like you said, if its abused when a story might come out as a whistle blower and uncover some sort of story on the administration and Deepthroat doesnt want to use his real name so people dont know the source then they just use the "national security" card and it goes out the window.
    
    Its a great idea to be able to protect the sources but they shouldnt be able to pick and choose who to protect and when to protect them
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  - Free Capitalist (profile), 2 Oct 2009 @ 5:49am
    
    Re: Re: Its amazing....
    To be fair, the last administration was just as bad, if not worse. It didn't want any shield law.
    
    So if you must compare the two, the Obama administration is at least open to some shield law.
    
    Some take their oppression straight, some like it with cream and sugar.
    
    Vivre la differance!
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  - Mike Basher, 2 Oct 2009 @ 5:52am
    
    Re: Re: Its amazing....
    Mike,
    
    I can't agree with you on your statement:
    
    "So if you must compare the two, the Obama administration is at least open to some shield law."
    
    I would say more that the Obama administration is open to the APPEARANCE of a shield law.
    
    Honestly, I haven't seen alot of "change" from the Obama admin. Seems like they're grandstanding on the healthcare issue while continuing to obscure government transparency.
    
    But let's face it, his platform was CHANGE.... he never qualified it by saying POSITIVE CHANGE.
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  - DS, 2 Oct 2009 @ 7:46am
    
    Re: Re: Its amazing....
    Although one is in the best interest of the public, I'd rather have none than this one that only works when the gov't wants it to. At least with no law, you know where yous stand. With this one, you never know if you will be safe. And it opens it up to even more abuse.
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- boost, 2 Oct 2009 @ 7:29am
  
  Re: Its amazing....
  might have pulled the wool over your eyes, but not mine and not the eyes of many other people. People gave the power to this administration far before the election. People built BO up to be almost a God-like character.
  
  Peronally, all this scares the hell out of me because people are giving this administration the kind of power that we've seen in previous administrations that have orchestrated some of the most terrible events in history. I'm not saying it will happen with this administration, the people of this country have given away the power through rose colored glasses to a man many see as the greatest hope for change in this country.
  
  Then, the fact that there are some real radicals lounging around in Obama's cabinet. Some of these people have real aspirations of a true socialist state, and we've all seen how well those states work.
  
  Laws that allow the administration to keep transperancy away from the public, allow it to do things that are not legal and to limit the freedom of it's people. The last administration did it, so why won't this one do it too?
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  - zellamayzao, 2 Oct 2009 @ 11:09am
    
    Re: Re: Its amazing....
    No I saw through the b.s. from the get-go and realized he was a crook and surrounded himself with crooks as well. It frustrates me to no end that people just hand over their freedoms to this admin with the thought that they are actually concerned about the best interest of the American people. They dont care about us.
    
    Im conserivative by nature but have become jaded by both sides and our inability to get anything accomplished to actually move this country foreward and out of the rut we are in, in a bi-partisian democracy we are supposed to have.
    
    Its a bunch of he said/she said, dems vs. repubs, doing things to spite each other. This is just another example of him showing himself for who he really is. Its just a way to protect the publications that suck up to him and make sure he can shut up the people who take up for the other side.
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    - Dark Helmet (profile), 2 Oct 2009 @ 11:40am
      
      Re: Re: Re: Its amazing....
      Wow, I actually think it's WORSE than that. To me this looks pretty clearly like a feature creep to a state-run media system, whether acknowledged or hidden.
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      - zellamayzao, 2 Oct 2009 @ 11:57am
        
        Re: Re: Re: Re: Its amazing....
        It will be transparent so we can see whats going on.
        
        Sooooo transparent we will be able to look right through it and never see what is actually going on while we sink further and further into a socialist society.
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        Dark Helmet (profile), 2 Oct 2009 @ 12:12pm
        
        Re: Re: Re: Re: Re: Its amazing....
        "Sooooo transparent we will be able to look right through it and never see what is actually going on while we sink further and further into a socialist society."
        
        Or a non-society in nation with meaningless borders where MNCs are king. EVERYTHING I see today seems to point towards the loss of nation as a concept (except when nationalism is needed to push through an agenda) and towards the globalist agenda.
        
        I've made it fairly well-known who I think is behind this, though I'm just a nutcase :)
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        zellamayzao, 2 Oct 2009 @ 2:00pm
        
        Re: Re: Re: Re: Re: Re: Its amazing....
        Im just a non-trusting, conspiracy theorist, angry at the state of the union wishing there was something I could do to get through the thick heads of the people running this country and showing them what is actually going on in the nation around them.
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    - anon, 3 Oct 2009 @ 8:11pm
      
      Re: Re: Re: Its amazing....
      they say that we can't be trusted to rule ourselves well if we can't be trusted to rule ourselves than why are we trusting other people who can't be trusted to rule themselves.
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- Doc, 2 Oct 2009 @ 10:37am
  
  Re: Its amazing....
  I couldn't have said it better myself!
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REB, 2 Oct 2009 @ 4:56am

Isn't this the system currently in Venezuela? Why do I not find this surprising.
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Anonymous Coward, 2 Oct 2009 @ 5:11am

"not allowing any shield protection on any instance where the administration declares that the matter involves "significant" harm to national security."

When we start passing laws that take away the freedoms we defend from those that pose a "significant" harm, we become no better than those we are trying to defend against.
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- Anonymous Coward, 2 Oct 2009 @ 5:20am
  
  Re:
  sp/When we start passing laws that take away the freedoms we defend from those that pose a "significant" harm.../When we start passing laws that take away the freedoms we defend because of those that pose a "significant" harm...
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Anonymous Coward, 2 Oct 2009 @ 5:19am

Also, it's important to note that the NYTimes does have a conflict of interest in the matter, being they are journalists. So they are naturally shield law maximists and we should ensure that we actually understand the issue properly before jumping to conclusions based on what they say. Not saying they're wrong or right, just saying that they have an interest in misrepresenting what Obama is proposing.
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- MCR, 2 Oct 2009 @ 6:47am
  
  Re:
  The NYTimes would love the portion of the bill that doesn't protect bloggers to pass. It would mean whistleblowers could only go to "Real" journalists.
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  - Anonymous Coward, 3 Oct 2009 @ 8:21am
    
    Re: Re:
    Or you mean appointed journalists.
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    - anon, 3 Oct 2009 @ 8:13pm
      
      Re: Re: Re:
      or you mean government tools. corrected for you.
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- Michael Price (profile), 3 Oct 2009 @ 11:43pm
  
  Re:
  Actually the NYTimes has an interest in a bill that protects "mainstream" journalists but nobody else. Remember the biggest enemies of capitalism are capitalists, and kneecapping the competition has a long and undistinguished history in the US.
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Ima Fish (profile), 2 Oct 2009 @ 5:41am

The Who said it best: "Meet the new boss, same as the old boss"
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Anonymous Coward, 2 Oct 2009 @ 6:10am

Why stop there?
In for a penny, in for a pound. We may as well just go ahead and abolish Doctor-Patient Privilege, Attorney-Client Privilege, Priest-penitent privilege, marital privilege and privilege against self-incrimination while we're at it. Why do things half-assed?
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- John Doe, 2 Oct 2009 @ 6:52am
  
  Re: Why stop there?
  Don't worry, all of that is coming in the name of National Security. Oh, and don't forget the children.
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  - Anonymous Coward, 3 Oct 2009 @ 8:22am
    
    Re: Re: Why stop there?
    WILL SOMEONE PLEASE THINK OF THE CHILDREN????
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Griff (profile), 2 Oct 2009 @ 6:51am

So what is a journalist ?
There are bloggers that I would definitely define as journalists. However, if I started a blog tomorrow I would not really call myself a journalist. If I stick something on a blog/website and refuse to name my source do I in theory qualify for shield protection ? (Assuming it is not embarrassing to the govt).

Do I have to have a significant preexisting readership ?
Or does my publication have to ?
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- Free Capitalist (profile), 2 Oct 2009 @ 7:00am
  
  Re: So what is a journalist ?
  Why should someone have to be established at anything to enjoy the protection of the First Amendment?
  
  There is no accredation that makes someone unable to commit treason, just as there is no diploma that automatically makes someone competant in their field.
  
  Why build favoritism into the system at all?
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- anon, 3 Oct 2009 @ 8:14pm
  
  Re: So what is a journalist ?
  you have to be a government tool or subject to them so they can "supervise" you.
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Anonymous Coward, 2 Oct 2009 @ 7:27am

The fact that this new administration is doing things like this doesn't concern me. The thing that is really troubling to me is that while this administration is doing things, many groups remain silent about it.

These are the groups that marched in the street to argue against what GWB was doing, these are the groups that protested.

Now we see that they didn't really care about the issue, they just cared about getting their guy into office.
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- zellamayzao, 2 Oct 2009 @ 7:32am
  
  Re:
  Dont you dare stand up to this administration. If you do you are a right wing domestic terrorist. Whatever they say is right and infallible. Their ideas so far have proven to be whats best for this great nation and will continue to do so so keep it shut.
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  - slander (profile), 2 Oct 2009 @ 4:37pm
    
    Re: Re:
    If you do you are a right wing domestic terrorist.
    No, it's "Right-Wing Nazis" who want to to implement their own Holocaust... get it right, darn it.
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    - zellamayzao, 2 Oct 2009 @ 7:58pm
      
      Re: Re: Re:
      Sorry I was trying to be "politically correct". You never know who you may offend now-a-days if you say what you really mean. Oh well guess Im one step closer to being a nazi since im a registered republican and I drive a V.W.
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Dark Helmet (profile), 2 Oct 2009 @ 7:51am

Okay...
I personally talk a lot about the wealthy elite in this country and their puppets orchestrating a feature creep takeover of liberty in this country, but THIS seems to me to be a fairly transparent move to consolidate media and information in this country to a greater extent than it already is. This attempt to intrude on journalists in the name of "nat'l security" will probably go a long way towards controlling the mouthpieces.

Even those that don't necessarily believe in what they call "radical conspiracy theories" ought to at least be starting to understand what we crazies have been talking about now....
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PrometheeFeu (profile), 2 Oct 2009 @ 8:09am

Actually, I don't see why shield laws would not apply to national security cases. (even if there was a fair review process that determined if the case in question concerned national security) I mean, journalists either gain the info the gov't wants because they are contacted by the source in which case, if sources know shield laws won't apply, the source just won't contact the journalist and then the journalist won't have the info. Or journalists gain the info through investigation, in which case, the same investigation could be done by gov't agencies. I mean, this is basically saying that if the government says so, journalists suddenly become an investigative arm of the state. That's infringing on liberties and useless.
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Whisk33, 2 Oct 2009 @ 11:14am

The need?
Perhaps I am naive, but I don't see the need for shield laws. If the reported had a source and the source would have gotten in trouble (reprimanded/danger/death)because of what was said wouldn't the reporter natural try and protect the source. Even now the reporter could just spill the beans, its only because "the source" values the reports confidentiality that the reporter has any value to "the source" and I don't see that changing for the reporters. The shield would protect the reporter would it not? I guess I missing what the protection is from. We'll go with a overly simple example and maybe someone can explain it to me...
GovDA: "Who's your source?"
Reporter: "I don't know, I found the information on a post-it note and then I lost the post-it"
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- Anonymous Coward, 2 Oct 2009 @ 11:55am
  
  Re: The need?
  "I don't know" is an answer that does nothing but completely invalidate your information and is the worst of all possible outcomes here. A 'journalist' without valid sources for information is spreading rumors and nothing more.
  
  To protect the ability for a journalist to provide valid information they need to have the legal standing to say 'yes I have a source with first-hand knowledge of this issue, and I will not reveal that source without their consent'. Anything short of this is useless when reporting a whistleblowing issue or other corruption/scandal story.
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  - Whisk33, 2 Oct 2009 @ 1:23pm
    
    Re: Re: The need?
    If a source can never be verified, due to the shielding, then what use is it to have a verified source? Effectively only the reporter "knows" it can be verified. There is no check on the word of the reporter. Either way for the public, it is a disappearing post-it note, our only validation that the information presented is less than fiction is our reliability of the authenticity of the reporter.
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    - Reporter, 4 Oct 2009 @ 2:55pm
      
      Re: Re: Re: The need?
      Usually the reporter's supervisors (editors) also know who the source is. It's just like in any office, the higher ups don't like to put the fate of their careers in hands of their underlings! Editors hate anonymous sources. There are plenty of closed door meetings that take place before an anonymous sourced story goes to press.
      However, libel isn't the issue here - the government only goes after reporters and sources when the story is true. Hence, the need for shield laws.
      The very first thing you learn in Journalism class is this: in exchange for freedom of the press, journalists have an obligation to serve as 'watchdogs of government' to expose corruption. It's been a back and forth battle since the inception of our country. The internet and loss of the 'barrier to entry' has really throw a wrench into things. Our founding fathers didn't see blogs coming!
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- Anonymous Coward, 2 Oct 2009 @ 12:34pm
  
  Re: The need?
  "The shield would protect the reporter would it not? I guess I missing what the protection is from. We'll go with a overly simple example and maybe someone can explain it to me..."
  
  You are correct that it protects the reporter from revealing the source. But it also protects the source from possible retaliation.
  
  Say you see a senator shoot a hooker in an alley, and no-one sees you. You fear for your life, but want the story to get out, and know that going to the police will only get you killed or harmed, if they believe you at all. So, you go to someone at the Washington Post, or another publication where you know you can get the story out and remain protected.
  
  Without a shield law, the journalist can be incarcerated and interrogated until they give up the source. At that point it is about the journalist code of conduct. With the shield law, the journalist is not subject to legal repercussions and no-one can ask him for the source and expect him to give it up legally. I understand that there are always people that will find extralegal methods to take care of things, but the law protects them from the courts and the police.
  
  Look at the White Water scandal. There are those in the government that would have done anything to take out the person known as deepthroat at the time. They had mercenaries out looking for the person. Luckily, he had a great journalist to keep the secret for so long. Only when he was ready was his identity revealed.
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  - Whisk33, 2 Oct 2009 @ 1:31pm
    
    Re: Re: The need?
    "the journalist can be incarcerated and interrogated until they give up the source."
    
    Under obstruction of justice I presume? I think my point lies in what you said when you say "until [the reporter] give[s] up the source". The subject being the reporter and the fact that they must proactively give up the source. My inadequacies of the subject revolve around a lack of understand of the legal repercussions (obstruction of justice) that one my be available to by not "giving up" the source, which I assume does not lend itself to the "post-it note" defense that I suggested... but would the "post-it note" defense work?
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    - Reporter, 4 Oct 2009 @ 2:57pm
      
      Re: Re: Re: The need?
      Whisk: I think your post-in note defense is basically lying on the stand. That will win you a trip to jail, too, regardless of what you do for a living!
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  - slander (profile), 2 Oct 2009 @ 4:43pm
    
    Re: Re: The need?
    Look at the White Water scandal. There are those in the government that would have done anything to take out the person known as deepthroat at the time.
    Er, I hope that you're referring to Watergate rather than Whitewater. If not, then everyone already knows who "DeepThroat" was...
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- Reporter, 4 Oct 2009 @ 2:47pm
  
  Re: The need?
  Whisk33: Like everything else in America, it's a legal deal. This is from Wikipedia, so take it for what it's worth.
  
  Federal Judge Robert Sweet ruled on February 24, 2005 that NY Times journalist Judith Miller was not required to reveal who in the government leaked word of an impending raid to her. Prosecutor Patrick Fitzgerald had argued that Miller's calls to groups suspected of funding terrorists had tipped them off to the raid and allowed them time to destroy evidence. Fitzgerald wanted Miller's phone records to confirm the time of the tip and determine who had leaked the information to Miller in the first place. However, Judge Sweet held that because Fitzgerald could not demonstrate in advance that the phone records would provide the information he sought the prosecutor's needs were outweighed by a 'reporter's privilege' to keep sources confidential.
  
  The Federal Appeals Court in New York on on August 1, 2006 in a 2-to-1 decision ruled that federal prosecutors may inspect the telephone records of Miller and Philip Shenon. Judge Ralph K. Winter Jr. wrote: “No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters’ evidence."
  
  Journalist shield laws have been enacted in most states, but not at the federal level. These state laws vary widely but generally do not provide absolute protection, and journalists may still be compelled to testify if they have been witness to a crime or if there is no other way for the court to obtain the evidence.
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