Two Big Copyright Cases Sent To Top EU Court: One On Sampling, The Other On Freedom Of The Press

from the metall-auf-metall-auf-metall-auf-metall dept

Back in 2012, Techdirt wrote about one of the longest-running copyright sagas. It involved a 2-second rhythmic sample from the Kraftwerk track "Metall auf Metall", which was used by the German rapper Sabrina Setlur in a single called "Nur Mir". After the case had ping-ponged around various German courts for 12 years, a decision by Hamburg's highest regional court seemed to be the end of the matter, as Tim Cushing described in his comprehensive post. But in 2016, Germany's constitutional court took a look, and now a press release from the country's highest court (original in German), the Bundesgerichtshof (BGH), informs us that the case is still not yet over, and that it is moving up a level. The BGH has asked the Court of Justice of the European Union (CJEU), the top court in the EU, to clarify some basic points of law. A post on the IPKat blog runs through the details, and notes that one of the issues is:

What role the rights granted by the Charter of Fundamental Rights of the European Union plays: in particular, what is the relationship between copyright protection (Article 17(2)) and freedom of the arts (Article 13)?

That's asking a pretty deep question about copyright, and its relationship to creativity. As it happens, the same BGH has referred another copyright case to the CJEU asking equally important questions about that the role and limits of copyright (original in German). Here's IPKat again:

The second reference (I ZR 139/15 - Afghanistan Papiere) has been made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called 'Afghanistan Papers', ie confidential military reports on the operations of the Germany armed forces in the region in the period 2005-2012.

Exciting stuff. Equally exciting, albeit in a different way, are the key questions the BGH wants the CJEU to answer:

can copyright protection be trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?

There is probably no need to note that this question goes to the very heart of copyright protection, and will revive the longstanding discussion around the scope of protection.

Indeed. These are two very big copyright cases whose outcomes could have a major impact on the contours of copyright law in the EU, and maybe even beyond.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: cjeu, copyright, eu, freedom of the press, sampling

Court Says FBI Doesn't Have To Hand Over Its Rules For Surveilling Domestic Journalists

from the petitioners-immediately-placed-under-surveillance dept

A couple of years ago, the Freedom of the Press Foundation sued the DOJ over its refusal to release its secret rules governing spying on the nation's journalists. This was prompted by revelations the FBI had used National Security Letters to obtain information on AP and Fox News journalists. The DOJ then issued new rules on the do's and don'ts of surveilling journalists, but once again (a) redacted them into uselessness and (b) granted the FBI an NSL exception, undercutting the entire point of the recrafted rules.

The OIG report -- in which the Inspector General disputed the DOJ's extensive redactions -- still has yet to be released in a less-redacted form. Sadly, it now appears it will never be any less redacted than the unintelligible mess the DOJ handed over a few years ago. A federal judge has sided with the government, finding its investigative techniques and methods are too sensitive to be handed over to the public, much less journalists it may or may not have surveilled using NSLs. (h/t Trevor Timm, Mike Scarcella)

Underlying everything is the government's barely-contested assertion that these rules contain information of national security interest. It's a handy assertion because it means the DOJ doesn't even have to explain why the redactions it made are relevant to its national security claims. From the opinion [PDF]:

Recognizing the Court’s “limited institutional expertise on intelligence matters,” the Court accords substantial weight to Hardy’s representation that “any greater specificity in the descriptions and justifications . . . could reasonably be expected to jeopardize the national security of the United States.” Hardy Decl. ¶ 46. In the area of national security, “it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”

This same argument appears later in the decision when dispensing of the plaintiff's challenge to yet another FOIA exception deployed by the FBI:

[T]he Court finds Defendant has met its burden and properly withheld documents under Exemption 7(E) for all five categories of documents. Defendant described with particularity that the withheld documents all contained non-public information about the FBI’s investigative techniques and procedures. These pages not only identified NSLs as an investigative technique, but also described information such as the circumstances under which the techniques should be used, how to analyze the information gathered through these techniques, and the current focus of the FBI’s investigations. As in Hamdan, the Court concludes that the declarations, which state that further detail would “reveal[] the very information it seeks to protect,” are sufficient to satisfy Defendant’s burden.

The court's also uninterested in double-checking the DOJ's secrecy assertions. As always, the court has the option to review contested documents behind closed doors (and away from plaintiffs) to see if the government's claims of national security/investigative concerns are valid. The court here declined to exercise this privilege.

The Court finds that in camera review is unnecessary here as Defendant already provided sufficiently detailed factual information in support of its exemptions in the Hardy Declarations and Vaughn Index.

The FBI is still free to use NSLs to obtain information -- including call records -- about journalists. The DOJ may have reined in other options, but NSLs have always been the FBI's go-to form when it's stymied by the FISA court, magistrate judges, or internal guidelines. Nothing about that will change. As for what's actually changed at the DOJ as a result of this public outing of journalist surveillance, the public apparently can't be trusted with that information.

Filed Under: doj, fbi, first amendment, freedom of the press, journalists, rules, surveillance, transparency
Companies: freedom of the press foundation

Six Journalists Arrested, Charged While Covering Trump Inauguration Protests

from the not-so-free-press dept

We're in something of an era of firsts here in America. We have our first billionaire President, for instance. Add to that that, on his first day as President Elect, Donald Trump saw fit to take to Twitter to take aim at the First Amendment. Fears for what a Trump presidency means for the rights of the press and for free speech rights have compounded since then, supercharged by Trump himself, who has constructed a narrative in which the press is his foil, either because he truly believes that's the case or out of pure political expediency. Whichever the case, we had another first as on the very day of Trump's inauguration, his first day officially as President of the United States, police managed to arrest and charge six journalists for the crime of covering the protests coinciding with the ceremony.

There had already been reports of two such arrests, but we now learn of four more.

A documentary producer, a photojournalist, a live-streamer and a freelance reporter were each charged with the most serious level of offense under Washington DC’s law against rioting, after being caught up in the police action against demonstrators.

The Guardian learned of their arrests after reporting on Monday that the journalists Evan Engel of Vocativ and Alex Rubinstein of RT America had also been arrested and charged with felonies while covering the same unrest on Friday morning.

Six arrests, six journalists charged, and six arraignments and releases pending future hearings in the coming months. The arrest reports for each are remarkably free of any detail on specific actions these individuals are to have undertaken which would violate the law.

None of the arrest reports for the six journalists makes any specific allegations about what any of them are supposed to have done wrong. Keller’s report, which also covers the arrests of an unknown number of unidentified other people, includes a note that a police vehicle was vandalized. “I had absolutely nothing to do with the vandalism,” said Keller.

Reports on the arrests of five of the six journalists contain identical language alleging that “numerous crimes were occurring in police presence”. They state that windows were broken, fires were lit and vehicles were damaged. “The crowd was observed enticing a riot by organizing, promoting, encouraging and participating in acts of violence in furtherance of the riot,” the police reports said.

One of the privileges of American law is typically that it avoids levying legal responsibility on one individual for the actions of others. There's little sense generally in pointing at a crowd of people, a percentage of which are engaging in unlawful behavior, and tossing a legal net over them all. There's even less sense in this when the net catches members of the press, who the public relies on for reporting on newsworthy events. And there's even less sense still when the reporting is on a political matter.

Now, it's not as though it was only upon President Trump's inauguration that journalists were suddenly being arrested while performing their jobs. It happened on several occasions under Barrack Obama, beacon of transparency and press access though he claimed to be. Instead, this is something of a continuation of an attack on a free and open press, buttressed by a President engaged in open warfare with any press outlets he doesn't find favorable.

The signals have been sent since before his inauguration and since: access and information is going to be cut off. In response, several press outlets have announced investments into their investigative reporting teams. If the arrest of those journalists covering their stories continues to be accepted, that doesn't leave the public with much of a press at all.

Filed Under: arrested, donald trump, free speech, freedom of the press, journalism, protests, reporters, riots, washington dc

Trump's Very First Tweet As President Elect Basically Shits On The First Amendment

from the off-to-the-races dept

Since being declared the winner of the Presidential election, Donald Trump has actually played the part of an actual President-elect quite well. His victory speech was quite gracious and welcoming. His meeting with President Obama appeared to go well. Of course, anyone who's watched him during the campaign knew it couldn't last, but perhaps, maybe, he'd actually be presidential for a few weeks or (could we dare?) a few months? But, nope. All it took was about 48 hours and the man who four years ago demanded that people "march on Washington" because President Obama was re-elected, used his very first tweet as the President elect to shit all over the First Amendment. Compare that to his tweet from four years ago: It's true that there are lots of protests going on, some of which have turned violent. It's also true that there's been a wave of attacks on minorities across the US by Trump supporters. An actual leader would seek to tell his supporters that's not how Americans should act. But that's not what we got.

We noted that one of the big fears with a Trump presidency is what it would mean for the First Amendment, and kicking it off by attacking both the freedom of the press and the right of assembly in one go (also, with the bizarre claim of "professional protestors" -- which, you know, if it were true, wouldn't need "inciting" by the press) should be deeply concerning to anyone who supports the First Amendment. There were going to be protests no matter how this election turned out. That was a given. A President who was truly focused on bringing the country together would recognize the concerns and grievances, not attack them and deny their rights.

As (of all people?!?) Ryan Adams correctly noted to Trump in a response tweet: "you work for them now. You're hired. You work for all Americans now [and] your JOB is to DEFEND their RIGHT to protest." He's absolutely right. In particular, the oath that Donald Trump will take in a few months is that he will "preserve, protect and defend the Constitution of the United States." He talked a lot about the 2nd Amendment on the campaign trail. He should familiarize himself with the 1st.

Filed Under: donald trump, first amendment, free speech, freedom of assembly, freedom of the press, leadership, protesters

CNN Tells Viewers It's Illegal For Them To Read Wikileaks Document Dumps. CNN Is Wrong

from the you're-not-helping dept

I cut the cord years ago, so the only time I stumble into cable "news" coverage is usually at the gym or airport. And time and time again I'm struck by how the empty prattle is more in line with dystopian satire than anything resembling actual news reporting or intellectual analysis. Even when these channels feature live breaking news stories, you'd be hard pressed to find a reporter willing to call up a source and confirm details of what's happening, resulting in something that's more akin to industrialized speculation than the polished news product of multi-billion-dollar media empires.

The latest case in point: CNN's Chris Cuomo was dissecting the latest Wikileaks document dump when he decided to "inform" viewers that it's illegal for anybody but a member of the media to download and view the contents of the Podesta leaks:

"...Remember, it’s illegal to possess these stolen documents. It’s different for the media. So everything you learn about this, you’re learning from us."

Yeah, that's not how the First Amendment works. Legal precedent has repeatedly made it clear that the First Amendment offers the same protection to the press as to the public, even when it comes to possessing or distributing illegally obtained material (just as long as you weren't directly involved in the theft of the material in question). In its 2001 Bartnicki v. Vopper decision, the Supreme Court rejected even civil liability for distributing illegally obtained cellphone recordings, and refused to differentiate the public from the media in its ruling:

"The . . . question is whether the application of these statutes [that purport to ban distributing illegally obtained material, even when one wasn’t involved in the distribution,] in such circumstances violates the First Amendment. [Footnote: In answering this question, we draw no distinction between the media respondents and Yocum.]"

As the Washington Post and the Wall Street Journal's law blog were quick to highlight, that case cited New York Times Co. v. Sullivan, which also treated press outlets and the public equally in the eyes of the law in such situations. The Supreme Court's Pearson v. Dodd ruling also makes clear that the possession of illegally leaked materials is simply not treated the same way as knowingly possessing physical, stolen property.

This isn't Cuomo's first run in with being violently wrong on legal fundamentals despite having graduated from Fordham with a law degree. He also took a bit of a beating last year when he apparently hallucinated a "hate speech" exception buried in the First Amendment. At some point you have to wonder if CNN is actively trying to be this bad at what it does, or if CNN boss Jeff Zucker is a subversive artist of the highest order, working tirelessly to craft a crushing, satirical look at modern American intellectual dysfunction.

Filed Under: chris cuomo, first amendment, freedom of the press
Companies: cnn, wikileaks

Billionaire Backer Of Palantir & Facebook Insists He's Bankrupting Journalists To Protect Your Privacy

from the bullshit-peter dept

We've already made it quite clear where we stand on Peter Thiel financing a number of lawsuits against Gawker Media as some sort of retaliation for some articles he didn't like. Lots of people who really hate Gawker don't seem to care how problematic Thiel's actions are, but you should be concerned, even if you dislike Gawker -- in part, because many of the lawsuits Thiel appears to be backing are clearly bogus and just designed to bankrupt the company, which happened a couple months ago.

This week is the auction to see who ends up with Gawker, and Thiel is taking a weird victory lap with a silly and misleading oped in the NY Times where he argues that this was really all about making a stand for privacy and has nothing to do with shitting on the First Amendment. There's a lot in the article that's bullshit, and it deserves a thorough debunking, so here we go.

First off, positioning himself as a champion of privacy seems laughable. After all, this is the guy who put the first money into both Palantir and Facebook. Palantir, of course, is the datamining operation used by governments and law enforcement around the globe to snoop through various databases and try to find magical connections. Palantir is rumored to be in trouble lately, in part because its technology isn't that good, and it may have built a multi-billion dollar business on convincing clueless government officials that by sniffing through a variety of databases, it could magically find important "connections." But Palantir is an entire business based on the idea of helping governments undermine citizens' privacy. And then there's Facebook.

As for Facebook, I actually think the company has something of an unfair reputation as a "privacy destroyer," but it is true that the FTC dinged Facebook for a series of "unfair and deceptive practices" around respecting the privacy wishes of users, and the company is required to go through regular FTC privacy audits for a 20 year period over it. Whether this was due to carelessness or malfeasance (I believe the former, though many believe the latter), Facebook isn't exactly known as a paragon of protecting people's privacy wishes.

Thiel remains on the board of both companies. If he were truly about standing up for people's privacy -- why not start with those two companies?

From there, he talks about the Hulk Hogan lawsuit, Thiel insists that Gawker's editorial decision in publishing a heavily edited clip of a sex tape involving Hogan was "beyond the pale." Personally, I agree. I wouldn't have done it. But there were editorial reasons why Gawker did so, and as I've stated, I have tremendous concerns about juries retroactively determining if editorial decisions were appropriate or not. That seems to go very much against the First Amendment -- as a few courts have already found in the Gawker/Hogan case (though, yes, the judge and jury in the current case disagreed -- but if the case actually makes it to appeal, there's a fairly high likelihood of the original ruling being overturned).

Sure enough, in October 2012 Gawker did something beyond the pale: They published a sex tape without the consent of the people in the video. Unfortunately for Gawker, they had targeted someone who was determined to fight back. Terry Bollea is better known as the wrestler Hulk Hogan, a fact that Gawker claimed justified public access to his private life. Mr. Bollea disagreed. At first he simply requested that Gawker take down the video. But Gawker refused. It was getting millions of page views, and that was making money.

A few things on this. I think that Hogan would have a legitimate legal gripe against whoever filmed the sex tape, if it were truly done without his knowledge (there's some dispute on this), and possibly with whoever leaked it. But the decision to publish a few clips from it is protected by the First Amendment. Whatever privacy violation occurred, if there was one, was done by whoever filmed the video.

Second, the reason that Hogan was willing to "fight back" was that he didn't have to pay for the lawsuit, and instead had a vindictive billionaire with an axe to grind to help him finance it. Not only did Hogan reject a supposed $10 million settlement offer from Gawker, his lawyer (who an organization owned by Thiel was paying regularly) deliberately made decisions designed to bankrupt Gawker, including dropping a specific claim to get an insurance company out from covering the lawsuit (which is the opposite of how these things normally work, where plaintiffs want the insurance company involved in order to get more money).

Third, it's ridiculous to argue that Gawker kept the video up solely because it was making money. I'm sure that was part of the calculation, but it's pretty clear that they kept it up based on the principle of the thing -- which is that we live in a country that values freedom of the press, and you don't back down when someone doesn't like your coverage. It's the same thing we do when we receive bogus legal threats. We don't keep stories up because of "the clicks" but because we don't give in to bullies demanding we take down stories.

Four years later, the financial calculus has changed. Gawker Media Group has put itself up for sale (bids are due Monday afternoon) in part to satisfy the legal judgment of a unanimous jury that ruled against Gawker and assessed damages of $140 million, proving that there are consequences for violating privacy. Mr. Bollea could not have secured justice without a fight, and he displayed great perseverance. For my part, I am proud to have contributed financial support to his case. I will support him until his final victory — Gawker said it intends to appeal — and I would gladly support someone else in the same position.

Yeah, the calculus has changed due to a deliberate gaming of the judicial system by Thiel. As for Thiel being "proud to have contributed financial support" that's again misleading in the extreme. Thiel specifically had a law firm basically on retainer and told to go searching for lawsuits to bring down Gawker. It was not about "securing justice" for anyone. It was about destroying Gawker.

And it's odd that someone so proud of funding such lawsuits hid that fact for many years until some reporters finally broke the story that he was behind it.

As for the "gladly support someone else in the same position," Thiel has already noted that he's funding other lawsuits against Gawker, and as we've noted, if you look through all of the other lawsuits against Gawker, most of them are absolutely ridiculous including the patently silly lawsuit by Shiva Ayyadurai against Gawker for accurately reporting that Ayyadurai did not invent email, no matter how many times he insists he did.

As a site that has regularly reported on Ayyadurai's ridiculous claims ourself, the fact that Thiel may be supporting his lawsuit against Gawker certainly hits home for us. And how the fuck does that have anything at all to do with "protecting privacy"? Ayyadurai has basically been a publicity hound for the last decade or so, effectively demanding credit for something he did not do.

From there, Thiel shifts tone and pretends that he's a supporter of press freedoms -- despite the fact that he's funding a series of cases designed to destroy a media outlet.

The defense of privacy in the digital age is an ongoing cause. As for Gawker, whatever good work it did will continue in the future, and suggesting otherwise would be an insult to its writers and to readers. It is ridiculous to claim that journalism requires indiscriminate access to private people’s sex lives.

This is ridiculous on multiple levels. First off, it's crazy for Thiel to suggest here that Gawker's writers will "continue" to do what they do in the future when he's actively working to bankrupt them. Just last week, in the Hogan lawsuit, the reporter AJ Daulerio told the court that he was down to last $1,500 and Hogan (via Thiel funded lawyers) was trying to get whatever they could from him. Because of Gawker's bankruptcy, Daulerio could no longer rely on Gawker's lawyers, and he admitted that he could not afford to get his own. It appears that Thiel is doing the same thing to Sam Biddle, who worked at Gawker and is now at the Intercept. Personally, I think Biddle is one of the absolute worst reporters on the tech beat. He frequently confuses some basic things, draws connections that don't exist, exaggerates fiercely and misleads readers consistently. And yet, I'd side with him every day on the Thiel-funded lawsuits against him. And that's because that's how press freedom works. Even if I think Biddle is a terrible reporter, he should have every right to publish his terrible reporting without fear of being driven into bankruptcy by a vindictive billionaire.

And, again, if this were just about "sex lives", why do so many of the other lawsuits against Gawker, that appear to be funded by Thiel (using the same lawyer, Charles Harder), have absolutely nothing to do with privacy or sex lives? And, also, the claim that this is about "indiscriminate access to private people's sex lives" is simply false. It's a false statement that Thiel has every right to publish because of the freedom of the press that he's currently spitting on. Gawker made it clear that they published the story because Hogan -- a very public person -- had a history of bragging publicly about his sex life. That's what made it newsworthy. Nowhere did Gawker claim that it would publish just anyone's sex tapes.

A free press is vital for public debate.

That must be why he told a law firm to find lawsuits with the specific goal of bankrupting a media company he disliked.

Since sensitive information can sometimes be publicly relevant, exercising judgment is always part of the journalist’s profession. It’s not for me to draw the line, but journalists should condemn those who willfully cross it.

Wait. Thiel is totally claiming to draw the line in this very article. And he put his money behind his line drawing. Shouldn't we all be a little concerned when a billionaire gets to decide which reporting is on which side of the line?

The press is too important to let its role be undermined by those who would search for clicks at the cost of the profession’s reputation.

I'd argue that the press is too important to let its role be undermined by a petty and vindictive billionaire who would then totally misrepresent the truth later (after hiding his involvement). This is why we have anti-SLAPP laws.

And, from there, Thiel makes a weird pivot into backing an almost certainly unconstitutional anti-revenge porn bill put forth last month by Rep. Jackie Speier.

The United States House of Representatives is considering the Intimate Privacy Protection Act, a bipartisan bill that would make it illegal to distribute explicit private images, sometimes called revenge porn, without the consent of the people involved. Nicknamed the Gawker Bill, it would also provide criminal consequences for third parties who sought to profit from such material.

First of all, it's not nicknamed the Gawker Bill. I've been following both the Gawker lawsuits and various efforts to get revenge porn bills passed for years and until reading this article, I've never once heard anyone refer to it as the Gawker Bill. Even Rep. Jackie Speier has denied that anyone has called it the Gawker Bill.

On top of that, as mentioned, the bill is almost certainly unconstitutional. In the last few months we've seen a few state revenge porn bills dumped as unconstitutional, and should Speier's bill actually go anywhere, it too would almost certainly be declared unconstitutional too.

So now we have Thiel not just pretending to support the First Amendment, but he's both suing to kill a media property and supporting a law that is unlikely to live up to First Amendment scrutiny.

This is a step in the right direction. Protecting individual dignity online is a long-term project, and it will require many delicate judgments.

Those "delicate judgments" include suing a publication for accurately calling out a guy for pretending to invent email? Really? And for personally destroying the lives of reporters? Those don't seem like very good judgments. And, again, this sudden concern for "individual dignity" is coming from the guy who put the first money into both Palantir and Facebook.

We can begin on solid ground by acknowledging that it is wrong to expose people’s most intimate moments for no good reason. That is the kind of clear moral line that Gawker and publishers like it have sought to blur. But they can’t do it if we don’t let them.

I think it's wrong to try to stifle a free press. I think it's wrong to misrepresent the reasoning behind editorial decisions. I think it's wrong to pretend you support privacy when you're responsible for funding two multibillion dollar businesses built on doing the opposite.

Here's the thing: until all of this came out, I had a lot of respect for Thiel. I thought he was one of the more interesting and principled entrepreneurs out there. I thought that his views on investments and entrepreneurship were a lot more intriguing and insightful than many gave him credit for. But these actions and this bogus after-the-fact justification for his actions are just a bunch of cowardly bullshit. Thiel should just admit that he set out to destroy Gawker because he could. There's nothing principled or honorable about it.

Filed Under: aj daulerio, first amendment, freedom of the press, peter thiel, privacy, sam biddle
Companies: facebook, gawker, palantir

Harrisburg, PA Mayor Picks And Chooses Who The 'Real' Journalists Are

from the picking-a-fight dept

We talk a lot around here about stories with people trying to determine what "real journalism" is. Those stories tend to veer towards the incredibly dumb, with most centering on a misunderstanding of what journalism actually means in the digital age. For a long time, journalism was an alchemy performed by a select few wizards, horded by a few outlets, which vetted and locked up their product. Today, of course, the barriers of entry to doing any kind of journalism are lower and the ability to distribute that kind of work is virtually unlimited. And, despite what you might hear from some grumpy folks who prefer the good ol' days, it turns out that smaller websites and independent citizens can journalism really well!

But not everybody has gotten that memo, apparently. Take Eric Papenfuse, Mayor of Harrisburg, Pennsylvania. He has recently, and apparently surprisingly, decided to ban anyone working for website PennLive to the weekly meetings and briefings the rest of the press is allowed to attend.

We allowed Papenfuse to speak on his behalf. He said the ban was put in place because he does not believe PennLive is a credible news outlet, therefore it should not be held to the same standard.

“I think PennLive is the equivalent to Gawker (a self-proclaimed gossip blog), not the equivalent of the Washington Post,” Papenfuse said, “and it needs to be understood and treated as such.”

Now, I'm quite familiar with Gawker, having both read the site and our own coverage of their escapades recently. So when I went to PennLive.com to check the site out, I was expecting snark and gossip alongside some substance, which is exactly how I would describe Gawker. Instead I was greeted by headlines over a missing 11 year old girl from the area, Harrisburg crime reporting, and stories about a motorcycle accident. I can't say I'm sure that there is zero gossip on the site, but I can attest that I have yet to find even one sex-tape involving a professional wrestler. Honestly, the whole site seems like a basic local news site.

Observers appear to be equally confused.

Dave LaTorre, founder of LaTorre Communications, could not believe that a government official of a capital city could make such a public relations blunder.

“I call this breaking into jail,” LaTorre said. “You break into jail and you create a problem that wasn’t there.”

LaTorre said in full disclosure, he voted and donated to Papenfuse’s campaign. He was disappointed by Papenfuse’s decision Monday to limit access to PennLive reporters, no matter the reason.

“To pick a fight right now clearly will drown out a lot of the positive vibe that we felt here in the city,” he said.

Pressed for details, the good Mayor actually suggested that PennLive traffics in "hate speech." When bewildered questioners asked what in the world he was talking about, he said:

When asked if even hate speech should be considered hate speech, the mayor said not when it concerns an “anonymous post.” Papenfuse added that PennLive must better police its public comment sections to be considered a legitimate news source before he will release the ban.

If this ends up being all about the site allowing its community to comment, and comment anonymously, then this is completely insane. First, as LaTorre pointed out, the Mayor ran on a campaign of transparency. To begin banning sites that allow the public to comment from press briefings is the opposite of transparency. It breeds a culture within the press where, absent the rest of the press ganging up in retaliation, foists a permission-like atmosphere, where positive coverage is rewarded with more access. There's always some of that kind of thing that goes on, sure, but making it policy through banning unfavored publications? Come on.

Oh, and of course the Mayor's attempt to drive traffic away from PennLive didn't exactly go as planned.

LaTorre said that notion backfired as PennLive’s story on Papenfuse cutting off reporters has generated nearly 500 comments and thousands of page views.

“I’m looking at other comments. Twenty-six on one story,” LaTorre said. “Fifteen, 3, 5; this is Penn State story-type numbers.”

As a communications specialist, LaTorre advises Papenfuse to rescind his ban and apologize for the sake of the Office of Mayor and Harrisburg as a whole.

“Think about this decision. Reverse it,” he said, “and get back to governing.”

Papenfuse reportedly refused this advice. Banning the press for allowing comments and proclaiming a site as not being journalism? Oh, yeah, this should go well.

Filed Under: eric papenfuse, free speech, freedom of the press, harrisburg, hate speech, pennsylvania
Companies: pennlive

Journalists Arrested In Ferguson Promise Not To Promote The Settlement

from the interesting-agreement dept

Back in 2014, as the protests in Ferguson, Missouri were the main story everyone was following, we noted a troubling pattern of police in the area arresting journalists on no basis whatsoever. This happened even after a court told them to knock if off. And yet, the fallout from this is still happening. For reasons that still don't make any sense at all, prosecutors have charged two journalists -- Ryan Reilly and Wesley Lowery -- with trespassing, after they failed to leave a McDonald's fast enough (they were leaving, just apparently not fast enough).

Back in March, St. Louis County "accidentally" issued arrest warrants for the two of them: They eventually were told the warrants were issued in error, but it still shows how ridiculous this situation became. Finally, on Thursday, officials announced that they were dropping the charges against Reilly and Lowery, in exchange for a promise that the two will not sue the county.

Meanwhile, some other journalists who had been detained had already filed a lawsuit over the unlawful detention and, on Wednesdsay, it was announced that a settlement has been reached in which law enforcement officers will receive more training. While the official details of the settlement were "confidential," the Huffington Post got a copy of the settlement using a FOIA request and found some interesting details, including an agreement that none of the four journalists in question will "publicize" the agreement in any way:

Under the deal, Ryan Devereaux, Lukas Hermsmeier, Ansgar Graw and Frank Herrmann cannot “take any steps to publicize any of the terms” of the settlement. The agreement requires St. Louis County to pay $75,000 to resolve the federal civil rights lawsuit from the reporters, but like many settlements does not require the county to admit liability.

The agreement, a copy of which was obtained by The Huffington Post through a public records request, will also require all officers with the police department to undergo mandatory in-service training on media access and the right to record police activity.

Of course, it shouldn't take a lawsuit for police to learn about the right of anyone (not just the press!) to record police activity. And, even though this information is getting out anyway, it seems pretty ridiculous that part of this settlement has this kind of gag order. These people are reporters. Their whole focus is on sharing and spreading information. It sounds like the St. Louis County Police Dept. must have really wanted to try to keep this settlement quiet... and now that's backfiring too. Maybe it should just stop trying to arrest and muzzle the press.

Filed Under: arrests, ferguson, freedom of the press, missouri, ryan reilly, settlements, wesley lowery

Turkish President Comes To The US, Pretends That It Can Silence And Attack The Press Like It Does At Home

from the freedom-of-the-press? dept

We've written a whole bunch about the incredibly thin-skinned and litigious President of Turkey, Recep Tayyip Erdogan. Erdogan took his show on the road to the US this week, and apparently that included pretending that he can treat press in the US as bad as he does at home. Erdogan spoke at the Brookings Institution yesterday, and there were protestors outside. That's not that surprising, but rather than doing what basically anyone else does in that situation and ignore the protestors, Erdogan's security clashed with the protestors and then took it up a notch going after reporters:

A planned speech by the controversial Turkish leader Recep Tayyip Erdogan descended into violence and chaos Thursday, with one journalist physically removed from the event site by Turkish security personnel, another kicked by a guard, and a third — a woman — thrown to the sidewalk in front of a Washington think tank where he was to speak.

And then there was this:

Later, a shoving match between what appeared to be a Brookings Institute worker and Turkish security broke out. “I am in charge of this building,” the apparent Brookings employee shouted as the two tangled. A Foreign Policy reporter and others holding cameras outside the event were also scolded by Turkish security. One cameraman was chased across the street by Turkish guards.

Apparently local Washington DC police had to keep explaining to Erdogan's security that they're not in charge and they're not allowed to do what they were doing:

Local Washington D.C. police officers were forced time and again to get between Erdogan’s security forces and journalists and protesters. At one point, an officer placed himself between one of Erdogan’s security guards and a cameraman he was moving to confront, while another angrily confronted several Turkish security guards in the middle of the street, telling them, “you’re part of the problem, you guys need to control yourselves and let these people protest.”

Meanwhile, inside, Erdogan played ignorant claiming that he has no problem at all with "criticism" but rather is just deeply offended by "insults."

Erodgan says has no problem with critcism, but does not allow insult, if insulted, my lawyers will file lawsuit #incredible

— Laura Rozen (@lrozen) March 31, 2016

How one distinguishes between "criticism" and "insults" is -- of course -- left unclear.

Filed Under: free speech, freedom of the press, recep tayyip erdogan, turkey

DOJ Issues First Annual Media Subpoena Report

from the freedom-of-the-press? dept

The DOJ has released its inaugural report on use of subpoenas to obtain information from "media sources." This is part of former Attorney General Eric Holder's nod to transparency -- a nod he gave shortly before leaving office. We'll have to watch this space in 2016 to see if it will actually become an "annual" report. (And if it is, we'll also have to watch this space to see if Reason and Popehat are considered by the DOJ to be "media sources" after tangling with both over the discussion of federal judges and woodchippers.)

That being said, there's some interesting information in here, including the DOJ's hassling of the New York Times.

In connection with the trial of former CIA officer Jeffrey Sterling, who was charged with, and convicted of, offenses related to his unauthorized disclosure of national security information, the Attorney General authorized the Criminal Division and the USAO for the Eastern District of Virginia to issue a subpoena to New York Times reporter James Risen. The authorization was limited to eliciting testimony at trial and/or pretrial hearings confirming (1) that Risen has a confidentiality agreement with a particular source, (2) that Risen authored a particular chapter in his book State of War, (3) that statements attributed to an unnamed source were, in fact, made by an unnamed source, (4) that statements attributed to an identified source were, in fact, made by an identified source, and (5) the existence of a prior non-confidential reporter-source relationship with Sterling.

[...]

The subpoena was issued, and Risen testified at a pretrial hearing. He was not called to testify at trial.

That last sentence is particularly interesting as it pretty much glosses over the DOJ's about face on Risen's testimony. It pushed hard to force Risen to testify in hopes of getting him to reveal his confidential source. Risen did testify (pre-trial) but refused to disclose his source's identity. The DOJ then decided that if it wasn't able to get what it wanted from him, then neither should anyone else. It moved to declare Risen an "unavailable witness," in hopes of blocking the defense from using any testimony he would provide against the government. In the DOJ's retelling of the event, its fruitless struggle to obtain information and its subsequent attempt to block further testimony from Risen is reduced to a very short and very neutral sentence: "He was not called to testify."

Of additonal bemusement is the DOJ's interest in determining whether Risen's "unnamed source" was actually an "unnamed source." It appears the government believes it should be the sole provider of "unnamed sources," and then only when such statements deliver the government's unofficial official positions.

The DOJ also tried to compel an unnamed "television news producer" to testify on inflammatory statements made to him by convicted terrorist Khalid al Fawwaz. Although the "transparency" report doesn't name the source targeted by the subpoena, the information the DOJ remains coy about is already in the public domain, as Britain Eakin of Courthouse News Service points out.

Media reports last year identified the witness in question as "60 Minutes" news producer Richard Bonin.

The DOJ says it wanted the producer to testify about anti-American and anti-Semitic statements al-Fawwaz made to him, but that prosecutors ultimately decided not to issue the subpoena when the producer said he would contest it.

Other items listed are more run-of-the-mill, including the subpoenaing of media footage of the 2013 Boston Marathon finish line, as well as other footage/recordings of interest to criminal prosecutions. Subpoenas were also issued to media entities to obtain information related to the DOJ's investigation of these entities for antitrust violations and a "tax-related prosecution."

The government's insatiable desire for redundancy is also on display in the three-page report.

In connection with the prosecution of Roger Key for conspiracy to commit murder-for-hire, attempted murder-for-hire, and aiding and abetting the unlawful discharge of a firearm. the United States Attorney for the Southern District of New York authorized the issuance of a subpoena to a news media entity for the broadcast footage of, and script for, a report concerning a related murder. The news media entity expressly agreed to provide the requested recordings in response to a subpoena.

So far, so good. But...

Ultimately, the news media entity failed to respond to the subpoena.

That sucks, except…

[W]hile the subpoena was pending, the USAO negotiated with the defense a stipulation regarding the admissibility of the publicly broadcast report.

Yes, the DOJ subpoenaed a publicly-broadcast news report. I would guess the media entity decided not to respond because the information sought was already publicly available. The DOJ's move to obtain a stipulation while the subpoena was still pending suggests someone involved realized this paperwork was unnecessary to achieve its aims.

The report may be brief, light on specifics (some of it due to ongoing prosecutions) and occasionally needlessly opaque (not identifying Robert Bonin, etc.), but it does retain one distinct advantage over all previous DOJ subpoena reports: this one actually exists! Here's to next year's annual report, which will hopefully give us a look at the DOJ's investigation of comment thread bombast and hyperbole.

Filed Under: doj, freedom of the press, gag orders, media, subpoenas