The US Charging Assange For Publishing Documents Would Be An Unprecedented Attempt To Chill A Free Press

from the I-guess-we're-'opening-up'-the-First-Amendment-now dept

Obama waged a war on whistleblowers during his eight-year run. Sure, it was done under a sunny facade of "transparency," but the former president set the gold standard for whistleblower prosecutions, performing more than every other president until then… combined.

Punishing whistleblowers is for amateurs. The Trump Administration will show everyone how it's done.

US authorities have prepared charges to seek the arrest of WikiLeaks founder Julian Assange, US officials familiar with the matter tell CNN.

For what, you may ask? Publication of leaked documents? Well, there's a little more to it than that.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

Hmm. But the Washington Post, Intercept, Guardian, and New York Times also did this. There's been some online speculation this actually refers to Assange's Russian-host-maneuvering and flight plan assistance -- that brief moment where journalists and g-men packed a plane to Cuba only to find themselves Snowden-less. But Ellen Nakashima's article for the Washington Post digs a little deeper into the proposed charges, citing evidence in Chelsea Manning's trial, where Assange assisted Manning with password cracking to sweep up digital breadcrumbs. (A 2012 DOJ warrant gives a bit more insight into the possible charges, which include espionage, CFAA violations, and "conversion" of stolen documents.)

But, again, this is nothing out of the ordinary for journalists who publish leaked documents. As Nakashima points out, helping sources erase their digital footprints is just something good journalists do. Prosecuting Assange for these efforts would set a terrible precedent.

[J]ournalists routinely employ methods — or tell sources to employ methods — that will help them avoid being identified. Justice Department officials in the previous administration believed that prosecuting Assange or other members of WikiLeaks could open the door to prosecuting news organizations and journalists who published classified information, and so they opted instead to target people, such as Manning, who had clearances to access such information and gave it to reporters.

Obama may have gone after a bunch of whistleblowers, but he was unwilling to cross the First Amendment line by punishing those who published leaked documents. Apparently, Trump and his DOJ have no such qualms.

Prosecutors have struggled with whether the First Amendment precluded the prosecution of Assange, but now believe they have found a way to move forward.

And they may have, without amending the First Amendment. But it will take a whole lot of cooperation to bring Assange in. The Ecuadorian embassy has managed to hold off Sweden for years and the country's government isn't exactly best friends with the US nor is it exactly respectful of US law.

Assange isn't a US citizen, so he's not automatically guaranteed First Amendment protections, even if the distribution of leaked documents is very much a journalistic enterprise. The US government doesn't automatically refuse to extend constitutional protections to foreign citizens, but it might be able to pick and choose which of those it wants to extend to Assange (though if he's charged in the US, he does get the benefit of all Constitutional protections). Even if the current DOJ can find a lawful way to prosecute Assange for still-unnamed charges related to leaked documents, this is an extremely dangerous direction for the federal government to be moving in.

This unofficial announcement by the DOJ is an implicit threat to journalists everywhere. You may hate Assange and/or Wikileaks, but it may be your favorite leak-friendly news sources facing charges next. Distinguishing your favorite source from Wikileaks is not nearly as easy as you might think.

Filed Under: doj, first amendment, free press, free speech, jeff sessions, julian assange
Companies: wikileaks

Canadian Appeals Court Says Vice Media Must Turn Over Communications With Source To Law Enforcement

from the putting-the-scare-quotes-back-in-'free'-press dept

Roughly a year ago, a Canadian court ruled that Vice Media must turn over conversations one of its journalists had with an alleged terrorist to the Royal Canadian Mounted Police. The ruling created a chilling effect, carving a hole in journalistic protections in favor of national security concerns. Not only would it deter journalists from speaking to sources who might, at some point in the future, face criminal charges, but it also would deter sources from speaking to journalists for fear their cover might be blown by law enforcement court orders.

Vice appealed the decision. Unfortunately, there's no better news awaiting them at the Ontario Court of Appeals. Elizabeth Raymer of Legal Feeds reports the higher court has upheld the previous ruling.

The Court of Appeal for Ontario has upheld a production order requiring a journalist to hand over all his communications with a man charged with terrorism-related offences. Journalist and civil liberties organizations have called the decision a blow to reporters abilities to protect their sources and publish stories in the public interest.

The Appeals Court weighed the competing issues -- journalistic protections vs. law enforcement needs -- and decided it was a toss-up.

“A free and vigorous press is essential to the proper functioning of a democracy,” Justice David Doherty of the Ontario appellate court acknowledged at the start of his judgment.

“The protection of society from serious criminal activity is equally important to the maintenance of a functioning democracy. Those fundamental societal concerns can come into conflict. When they do, it falls to the court to resolve those conflicts. In this case, claims based on the freedom of the press and those based on effective law enforcement collide at two points.”

But in the event of a tie, the win goes to law enforcement apparently. From the decision [PDF]:

After a careful consideration of the entirety of the record before him, the application judge concluded, at para. 47:

I am satisfied that the ITO set forth a basis upon which, after taking into account the special position of the media, the authorizing justice could have determined that the balance between the interests of law enforcement and the media’s right to freedom of expression favoured making the production order.

The reasons of the application judge reveal no misapprehension of the evidence, no failure to consider factors relevant to his assessment, or any other form of extractable legal error. It was reasonable, on this record, to find the balancing of the competing interests favoured making the production order.

Vice's attempt to quash the production order has been denied. Barring an appeal to the Supreme Court, the RCMP will get their man['s communications]… and encroach a bit further on press protections.

Filed Under: canada, free press, free speech, sources, terrorism
Companies: vice

Techdirt's First Amendment Fight For Its Life

from the the-first-amendment-has-to-mean-something dept

As you may have heard, last week we were sued for $15 million by Shiva Ayyadurai, who claims to have invented email. We have written, at great length, about his claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. We believe the legal claims in the lawsuit are meritless, and we intend to fight them and to win.

There is a larger point here. Defamation claims like this can force independent media companies to capitulate and shut down due to mounting legal costs. Ayyadurai's attorney, Charles Harder, has already shown that this model can lead to exactly that result. His efforts helped put a much larger and much more well-resourced company than Techdirt completely out of business.

So, in our view, this is not a fight about who invented email. This is a fight about whether or not our legal system will silence independent publications for publishing opinions that public figures do not like.

And here's the thing: this fight could very well be the end of Techdirt, even if we are completely on the right side of the law.

Whether or not you agree with us on our opinions about various things, I hope that you can recognize the importance of what's at stake here. Our First Amendment is designed to enable a free and open press — a press that can investigate and dig, a press that can challenge and expose. And if prominent individuals can make use of a crippling legal process to silence that effort, or even to create chilling effects among others, we become a weaker nation and a weaker people because of it.

We are a truly small and independent media company. We do not have many resources. We intend to fight this baseless lawsuit because of the principles at stake, but we have no illusions about the costs. It will take a toll on us, even if we win. It will be a distraction, no matter what happens. It already has been — which may well have been part of Ayyadurai's intent.

I am beyond thankful to the many of you who have reached out and offered to help in all sorts of ways. It is heartening to know so many people care about Techdirt. At some point soon, we may set up a dedicated legal defense fund. But, in the meantime, any support you can provide us will help — whether it's just alerting people to this situation and the danger of trying to stifle a free press through meritless lawsuits, or it's supporting Techdirt directly (or, if you have a company, advertising with us). As always, you can support us directly as a Friend of Techdirt, or check out some of the other perks you can get in our Insider program. You can also support us via Patreon.

If freedom of expression and the press is to actually mean something, it needs to be protected, not stomped on with baseless lawsuits that silence independent voices and opinions.

Filed Under: defamation, first amendment, free press, free speech, techdirt
Companies: floor64, techdirt

China Decrees That All News On Websites Must Funnel Through Government Approval

from the flailing dept

Fake news and hoax news stories are annoying, to be sure. I've been fooled a few times by hoax stories, as I imagine most other folks who do what we do have been. And, while the strategies taken by folks like Facebook haven't resulted in ending the scourge of fake news, I can understand the intent. There are probably better strategies out there, though they are harder to achieve. Strategies like educating the public on how to verify internet stories they see. Or instilling in people a healthy amount of skepticism starting at a young age so that they don't fall victim to every hoax out there. Or just sending around Snopes.com to all of our family members and demanding that they run any outrage through that filter first before bringing it to the dinner table.

The point is that there are good ways to combat fake news. Here with an example of a terrible way to do so is China, which is happily riding the annoyance at hoax news to the happy conclusion of further centralizing control of the internet through its government.

China’s powerful internet censorship body has further tightened its grip on online news reports by warning all news or social network websites against publishing news without proper verification, state media reports. The instruction, issued by the Cyberspace Administration of China, came only a few days after Xu Lin, formerly the deputy head of the organisation, replaced his boss, Lu Wei, as the top gatekeeper of Chinese internet affairs. The central internet censorship organ ordered its regional subordinates to fully fulfil their duties on the basis of content management, strengthen supervision and inspection, and severely punish fake news or news that deviated from the facts.

“All websites should bear the key responsibility to further streamline the course of reporting and publishing of news, and set up a sound internal monitoring mechanism among all mobile news portals [and the social media chat websites] Weibo or WeChat,” Xinhua reported the directive as saying. “It is forbidden to use hearsay to create news or use conjecture and imagination to distort the facts,” it said.

The facts as the Chinese government sees them, it should be said. And that's really the point of all of this. This isn't about hoax news stories; it's about the reporting of anything at all that would embarrass the Chinese government. This kind of censorship funnel would be horrific under any scenario and under any governing body, but given that the Chinese government lost its collective mind and went censor-crazy just because Lady Gaga met with the Dalai Lama, this law is like giving a life-eraser to an eight-year-old with a bad attitude.

In addition to the censorship by government clearly embedded in this new law, so too is there an attempt to chill anyone from actually speaking to reporters within the country.

“No website is allowed to report public news without specifying the sources, or report news that quotes untrue origins,” the circular warned, adding that the fabrication of news or distortion of the facts were also strictly prohibited.

And, just like that, you chill the water for anyone that might talk to a reporter, because that reporter is required to name his or her sources. It's a subtle bit of tyranny that's impressive for a government typically more ham-fisted than that.

Oh, and you'll never guess what excuse the Chinese government is trotting out to excuse this kind of massive censorship.

Officials say internet restrictions, including the blocking of popular foreign websites such as Google and Facebook, are needed to ensure security in the face of rising threats, such as terrorism, and also to stop the spread of damaging rumours.

Terrorism...and the spread of damaging rumors. I can assure you this law has only to do with one of those threats, and it isn't terrorism, and it isn't "rumors" the Chinese government is worried about.

Filed Under: china, free press, free speech, journalism, news, rumors, social media, speculation

Gawker Files For Bankruptcy, Begins Process Of Auctioning Itself Off

from the peter-thiel-gets-a-notch-in-his-belt dept

No matter what you think of Gawker, this is unfortunate news. The company has officially filed for Chapter 11 bankruptcy and begun the process of auctioning off its assets. Chapter 11 is an attempt to restructure debts (which include -- mostly -- the ~$130 million owed to Hulk Hogan after venture capitalist Peter Thiel funded Hogan's questionable lawsuit against Gawker). You can read the bankruptcy petition, but this is the main thing you need to know: Yeah, that's the beginning of the list of their 20 largest creditors and it starts with Hogan's "disputed" $130 million... and second place is some lawyers for $115k. So we're talking a pretty big difference from the number 1 creditor to the number 2 creditor. Of course, as with many Chapter 11 bankruptcy filings, this is more about process than substance. The filing potentially lets Gawker stop the process on some other things and explore the various alternatives, including a fairly likely sale to another player. It doesn't mean that the company is shutting down. Update: Apparently the plan is for Ziff Davis to buy Gawker, though others could potentially get into the bidding.

Either way, this is still unfortunate. Even if you believe the Hogan case was justified (and I think you're wrong about that), we should still be concerned when a billionaire basically sets out to destroy a media organization through a variety of lawsuits (many of which appear to be extremely questionable).

What if the next billionaire who gets upset about coverage targets a publication you do like? And don't say that it won't matter if that publication doesn't do anything wrong. Just the lawsuits alone can kill a company. And, even worse, the threat of lawsuits may create a massive chilling effect on what companies publish and how they go about their reporting. And disagree with Gawker's decisions and tactics all you want, the company did break a ton of important news stories. While this does not mean the end of Gawker, it's certainly the crippling of Gawker, and that should be a concern for anyone who believes in a free and open press.

Filed Under: bankruptcy, chapter 11, free press, hulk hogan, lawsuits, nick denton, peter thiel
Companies: gawker

Yes, A Billionaire Looking To Destroy A Media Organization Through Lawsuits Is A Big Deal Even If You Don't Like The Media Organization

from the slapp dept

So I had thought that our post yesterday about Peter Thiel allegedly financing Hulk Hogan's lawsuit against Gawker would be the only time we posted about that story, but a few things have happened that seem to merit a further post. First, Thiel has admitted to it, and insisted that he views it as "philanthropy." There are a number of claims that Thiel makes that are quite troubling. First, he admits that he didn't just back Hogan, but rather gave lawyers money to go hunting for anyone who might want to sue Gawker, directly out of spite.

He said that he hired a legal team several years ago to look for cases that he could help financially support. “Without going into all the details, we would get in touch with the plaintiffs who otherwise would have accepted a pittance for a settlement, and they were obviously quite happy to have this sort of support,” he said. “In a way very similar to how a plaintiff’s lawyer on contingency would do it.” Mr. Thiel declined to disclose what other cases he had supported but there are at least two current cases against Gawker.

Later on he admits: "It's safe to say this is not the only [case]."

This also seems ethically dubious, even if it's perfectly legal. I, frankly, don't have a huge concern over people funding others' lawsuits. While it can be abused, you can also see where it could be helpful for people who otherwise couldn't afford the legal costs. That said, specifically funding lawyers to go hunting for plaintiffs with the deliberate intent of killing a media publication? That's problematic. And that's true no matter how terrible you think Gawker is as a media property.

Incredibly, Thiel, who has given a large amount of money to the Committee to Protect Journalists, and who has claimed to be a big supporter of freedom of expression and freedom of the press, pulled a classic "I support freedom of speech, but..." line in response to questions along those lines, basically saying that he doesn't think Gawker counts.

He said he did not believe his actions were contradictory. “I refuse to believe that journalism means massive privacy violations,” he said. “I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

He continued, “It’s not like it is some sort of speaking truth to power or something going on here. The way I’ve thought about this is that Gawker has been a singularly terrible bully. In a way, if I didn’t think Gawker was unique, I wouldn’t have done any of this. If the entire media was more or less like this, this would be like trying to boil the ocean.” Mr. Thiel said he had not targeted any other media companies.

And this brings me to the second reason I'm posting more on this story: a surprising number of people (to me) keep supporting Thiel in this, and arguing that because what Gawker did was so horrible that this vendetta against them is okay. This is dangerous thinking. And I wanted to dig in on why it's so dangerous. First, there's the obvious: freedom of expression is supposed to protect the speech you dislike the most. Otherwise, we wouldn't need it. Carving it out because he thinks they're "bullies" is the kind of stuff that the First Amendment doesn't allow.

Second, the idea that this won't impact other journalism organizations is hogwash. As Felix Salmon wrote, this gives other billionaires a "dangerous blueprint" to be vindictive against any publication they dislike. Basically, he notes that publications are always extra careful about writing about notoriously litigious billionaires. But Thiel's plan is much more dubious: just have lawyers watching for anyone else who may be aggrieved, where a publication maybe wasn't quite as careful, and then mount a series of lawsuits, some perhaps more dubious than others (hold that thought...) to bury the company in legal expenses. Salmon points out that this opens up a huge number of possibilities for others:

If Thiel’s strategy works against Gawker, it could be used by any billionaire against any media organization. Sheldon Adelson, Donald Trump, the list goes on and on. Up until now, they’ve mostly been content suing news organizations as plaintiffs, over stories which name them. But Thiel has shown them how to go thermonuclear: bankroll other lawsuits, as many as it takes, and bankrupt the news organization that way. Very few companies have the legal wherewithal to withstand such a barrage.

Both Sheldon Adelson and Donald Trump have done vindictive SLAPP suits against news publications that have said things they didn't appreciate. And then there was the infamous case of billionaire Frank VanderSloot who waged a years long SLAPP legal campaign against Mother Jones over reporting he didn't like.

Josh Marshall, over at Talking Points Memo also does a good job of showing why this is so concerning:

Regardless of his politics, this news should disturb everyone. People talk a lot about the dominance of the 1% or in this case more like a tiny fraction of the 1%. But being able to give massive political contributions actually pales in comparison to the impact of being able to destroy a publication you don't like by combining the machinery of the courts with anonymity and unlimited funds to bleed a publication dry.

We don't have to go any further than Donald Trump to know that the incredibly rich often use frivolous litigation to intimidate critics and bludgeon enemies. Mother Jones had a lawsuit like this, clearly intended to bleed them dry through endless legal expenses. They won, though at a steep cost. But when bully plutocrats do so in their own name there is at least a self-correcting dynamic at work. A plaintiff in a libel suit opens him or herself up to reputational harm and highly intrusive legal discovery which is often enough to scare people away. (Remember, when Trump sued Tim O'Brien for publishing Trump insiders' claims that Trump was worth less than $250 million dollars, Trump was eventually forced to show O'Brien's lawyers his tax returns.) In some ways, this lines up with something I noted in my 'Brittle Grip' series of posts: growing calls from the extremely rich to not only be able to use their money without limit to shape the political process but to do so anonymously to avoid being "intimidated" or "vilified".

And even if you still think it's okay because (1) Gawker is awful or (2) "publishing a sex tape shouldn't be protected," consider, again, that Thiel has admitted that he's funding more lawsuits against Gawker. I currently know of at least four other lawsuits against Gawker -- with at least three of them using the same lawyer as Hogan used. And those lawsuits are ridiculous. We've written about both the Shiva Ayyadurai lawsuit (with the same lawyer) in which he's mad that Gawker accurately pointed out that Ayyadurai did not invent email, and the laugh out loud bad lawsuit by Chuck Johnson against Gawker. For what it's worth, Ayyadurai denies knowledge "of any behind-the-scenes financial arrangements involving my attorneys and anyone else." So perhaps Thiel is not funding his lawsuit, but with Thiel admitting to funding others, there aren't that many other choices.

Taken as a whole, this takes SLAPP (Strategic Lawsuits Against Public Participation) to entirely new levels. Flooding the zone with lawsuits, even if some have validity, with the sole admitted purpose of trying to destroy a publication you don't like has tremendous chilling effects on the press. Wired, with its tongue firmly in cheek, made this point fantastically with an article entitled How Can We Make You Happy Today, Peter Thiel? which is paragraph after paragraph of this kind of thing:

If you don’t know who Peter Thiel is, set your swoon-sockets to Stun, because Peter Thiel is the best—just an awesome, handsome, awesome guy—and we would never want to give the impression that we think otherwise. See how happy he is in this picture below? That’s how we want him to look every time he thinks about his ol’ buddies at Wired: “Great, great team. Total pros. Definitely not gonna get mad and team up with a former wrestler to secretly bankroll a lawsuit against them, and all because I didn’t like what they said about me.”

Three cheers for Peter Thiel!

Yes, it's exaggerated for comedic purposes, but the chilling effect can be very, very real. Publications that don't want to face such a vindictive campaign are going to stay silent. And that's a serious concern.

Meanwhile, Elizabeth Spiers highlights another point on all of this, focusing mainly on the fact that Thiel's response is massively out of proportion to any actual harm. Her focus is on whether or not this activity coming to light should worry entrepreneurs who work with Thiel, suggesting "I have no sense of proportionality, and might go completely apeshit on you for the slight infraction, or if godforbid we just have a simple misunderstanding."

Or, as a way of summing it up, if you think that it's okay for Thiel to do this because you think that Gawker consists of a bunch of jackasses, be afraid, because there's someone out there who thinks you're a jackass too. And just hope they're not a billionaire who has the free resources to wait for any attempt to destroy you... and then call it "philanthropy."

Hate on Gawker all you want. But this blueprint of trying to bury a company in legal fees, just out of spite, should worry everyone if you believe in freedom of the press. There's a reason that we're so concerned with typical SLAPP suits, and why we keep asking for stronger state anti-SLAPP laws and a federal anti-SLAPP law. Thiel's actions make this even more important today than ever before.

Filed Under: billionaires, chuck johnson, free press, hulk hogan, lawsuits, peter thiel, shiva ayyadurai, slapp, threats
Companies: gawker

UK Appeals Court Says UK Terrorism Act's Detention Clause Violates Press Freedoms

from the good-to-see dept

As you may recall, back in 2013, soon after the Snowden revelations, the UK detained David Miranda at Heathrow Airport and took a bunch of his electronics, as he was flying through (from Germany on his way back home to Brazil). Miranda is Glenn Greenwald's partner, and the claim by the UK was that in Berlin he had picked up copies of Snowden documents. The UK claimed that the detention was okay under Schedule 7 of the Terrorism Act, which allows for detaining terrorists, not journalists. But the UK said that it was okay, because it classified publishing Snowden documents as an act of terrorism.

Miranda sued in the UK, arguing that his rights were violated. Almost two years ago, a court ruled that the detention was lawful. Miranda appealed, and in an important ruling this morning, the appeals court said that, while Miranda's detention may have been lawful, Schedule 7 is incompatible with human rights, with regards to protecting journalists, and could be subject to abuse (even if it says that Miranda's detention wasn't necessarily abusive). The court more or less ruled that the authorities acted within reason, given the existing law, but a specific part of the law, regarding how it handles journalists, was a problem with regards to the guarantees for a free press.

Reading through the full 36-page ruling is worthwhile. The ruling is a victory for those concerned about abuses against journalists under the Terrorism Act -- but only a fairly narrow one. For example, the court does note that publication can "amount to an act of terrorism" if the publication "endangers a person's life" and the person publishing "intends it to have that effect." I can understand why someone might make that argument, but it still seems troubling to argue that any form of expression alone is an "act of terrorism."

Where the court disagrees with the government's claims, is in noting that Schedule 7 conflicts with Article 10 of the European Convention on Human Rights, which guarantees freedom of expression (not nearly as broadly as the US's First Amendment, but at least somewhat), because it could be read to force journalists to give up sources, potentially harming a free and open press:

The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

Given that, the court rules that Schedule 7 is currently "incompatible" with article 10, and thus the UK Parliament needs to change the law to fix that problem. The court does point out that there may be some easy fixes:

The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.

So it appears that the UK could fix this deficiency pretty easily -- but in a way that would better protect journalists. I recognize that there are a number of statements and press releases that are excited about this ruling, but it does appear to be a bit of an overstatement. Yes, finding problems with Schedule 7, especially as it relates to journalists, is a big deal. But the concerns seem to be pretty narrowly focused, and open to a rather quick fix by the UK Parliament. A stronger ruling would have been better, but at least the court recognized some problems with the current setup of the law with respect to press freedoms.

As for what happens next? The UK could challenge the ruling at a higher level. Or it could change the law, as suggested by the court. Or it could ignore the ruling, which would lead to a European challenge. So this isn't necessarily over yet....

Filed Under: article 10, david miranda, detention, free press, human rights, journalism, schedule 7, terrorism act, uk

German Justice Minister Fires Top Prosecutor Over 'Treason' Probe Into Journalists After War Of Words

from the escalation-issue dept

We've written a couple stories already about the ridiculous (and chilling) decision by German prosecutors to investigate the news site Netzpolitik for treason in publishing a couple of stories about plans to expand German surveillance capabilities and powers, with whistleblowers as sources. Things have become fairly heated over the past few days and appear to have just resulted in the country's Justice Minister firing the top prosecutor behind the investigation.

On Friday, Justice Minister Heiko Maas said publicly that he didn't think the investigation was appropriate and that he had told the chief federal prosecutor Harald Range exactly that. Following this, Range announced that he was pausing the investigation "for the good of press and media freedom," but then lashed out angrily at Maas, saying that his statements were "an intolerable encroachment on the independence of the judiciary." Details of internal discussions quickly slipped out into the public, after Range had told Maas he was intending to continue the investigation after an "independent" expert he had brought on determined that the documents revealed by Netzpolitik did contain state secrets.

[Range] said the independent expert had agreed that the documents appeared to be state secrets, as asserted by domestic security agency chief Hans-Georg Maassen.

Range said he had informed the justice minister of this but was told "to immediately stop" the process of commissioning outside advice.

The chief prosecutor said he had complied, but he added angrily that "to exert influence on an investigation because its possible outcome may not be politically opportune represents an intolerable encroachment on the independence of the judiciary".

"I saw myself obliged to inform the public about this," he added in a statement.

On the broader Netzpolitik case, he said: "The freedom of the press and of expression is a valuable asset.

"But this freedom, including on the Internet, is not limitless. It does not absolve journalists of the duty to comply with the law."

And... in response to that, it appears that Maas has fired Range:

"I have told federal prosecutor Range that my trust in his ability to fulfill the office has suffered lasting damage and therefore in agreement with the Chancellery I will request his retirement today," Maas told reporters in Berlin.

Maas also claims that Range's statement about Maas telling him to stop commissioning outside advice was "false."

The whole thing appears to have turned into quite the soap opera. Over the weekend, I had a long discussion about this case with someone quite knowledgeable about German law and legal process, who noted that the situation may not be quite as troubling as some are making it out to be, because all of this needs to happen in public under German law (including the notification of the investigation) unlike the American system, under which a grand jury can proceed with an investigation for years in total secrecy. And while the publicity around this investigation appears to be having an impact on (hopefully) curtailing and ending this investigation, it does not change the fact that the investigation happened in the first place, or the kind of chilling effects that it is clearly creating for journalists and whistleblowers alike.

Filed Under: constitutional crisis, free press, free speech, germany, harald range, heiko maas, investigation, treason
Companies: netzpolitik

Insanity Rules In Ireland: Media Ordered Not To Report On Parliamentary Speech

from the streisand-goes-to-ireland dept

Over in Ireland, it appears that some are not all that familiar with the Streisand Effect. Yesterday, an Irish member of Parliament, Catherine Murphy, gave a speech in which she detailed some charges against an Irish media tycoon, Denis O’Brien, claiming that the Irish Bank Resolution Corporation, was giving him ridiculously favorable terms on bank loans. Here's the main chunk of it:

I have no doubt that the special liquidator is more than capable of carrying out such a review, but his direct involvement in the sale process, his relationship with the eventual purchaser of Siteserv and his current actions in the High Court in supporting Mr. Denis O'Brien against RTE place him in a position where there is, at the very least, a perceived if not an actual conflict of interest. The review is not confined to Siteserv, but that is the transaction that prompted a review in the first instance. I worry about the transactions that have been excluded from the review given what that we now know that in the final months before prom night, the relationship between the Department and IBRC had completely broken down. If deals were being done without the knowledge or input of the Minister, we must know what those were.

We are now aware, for example, that the former CEO of IBRC made verbal agreements with Denis O'Brien to allow him to extend the terms of his already expired loans. We also know that the verbal agreement was never escalated to the credit committee for approval. I am led to believe and would welcome clarification by the Minister that the rates applicable to the extension were extremely favourable. I understand that Mr. O'Brien was enjoying a rate of approximately 1.25% when IBRC could, and arguably should, have been charging 7.5%. Given that we are talking about outstanding sums of upwards of €500 million, the interest rate applied is not an insignificant issue for the public interest. We also know that Denis O'Brien felt confident enough in his dealings with IBRC that he could write to Kieran Wallace, the special liquidator, to demand that the same favourable terms extended to him by way of a verbal agreement be continued. We now have Kieran Wallace, who has been appointed by the Government to conduct the IBRC review, joining with IBRC and Denis O'Brien in the High Court to seek to injunct the information I have outlined from coming into the public domain. Surely, that alone represents a conflict.

In documents released to me under freedom of information, the Minister, his officials, the Central Bank and even the troika acknowledge that IBRC - the former Anglo Irish Bank - is no ordinary bank and that there is a significant public interest as the bank was fully nationalised and was in wind-down mode. They all accept that this is the people's money we are dealing with and that there can be no dispute regarding the public interest in this.

Now, you may notice that Murphy mentions that O'Brien is trying to get an injunction to stop that information from being made public. Apparently, that even extends to what is said in Parliament -- because O'Brien then successfully got an injunction barring the Irish media from reporting on this. He apparently claimed that this was all a "breach of his privacy rights."

The three-day injunction hearing was told Mr O’Brien wanted to restrain publication of the broadcast report because it breached his privacy rights and would cause him incalculable commercial damage.

IBRC, which brought a separate but related application before the court, supported his case.

Apparently a bunch of people in Ireland still haven't heard about the Streisand Effect. Because now the story is blowing up everywhere. Oh, and if you're interested, you can even see the speech here: In other words, this story that ordinarily wouldn't have received much international press coverage at all -- is now getting tons of attention. Now, perhaps O'Brien and his lawyers are taking a calculated risk that the only place this issue really matters is at home in Ireland, and shutting people up about it there will be more important. After all, the accusations probably are big news there. But, it still seems like its backfiring massively. The internet is still a (mostly) global place, and the injunction not only calls that much more attention to the original accusations, but it makes everyone involved in the injunction look really foolish.

And it does seem to be backfiring in Ireland as well. While such injunctions are all too common in Ireland (and nearby in the UK, for that matter), the fact that it's flat out censoring a Parliamentary speech appears to have broken new ground that has a lot of people up in arms:

But the extension of the terms of that injunction to cover a parliamentary speech has shocked the Irish media community, not to mention the public.

It had extraordinary effects. For example, RTÉ reporter Philip Boucher Hayes tweeted yesterday afternoon that the Drivetime show was about to play Murphy’s speech, but the piece was not broadcast and his tweet was later deleted.

RTÉ news bulletins mentioned that Murphy had spoken but didn’t quote what she had said or play clips. Online reports quoting Murphy were removed, stating only that Murphy had spoken about O’Brien. Similarly, the Irish Times’s report was silent on what Murphy said but it did provide a link to her speech on the Oireachtas site. (Evidently - hat tip: Padraig Reidy - the Irish Times did initially report her words).

The report on the matter by Ireland’s best-selling daily newspaper, the Irish Independent, said: “Mr O’Brien successfully stopped RTÉ from broadcasting the details which Ms Murphy raised in the Dá il”.

Whatever short term benefit O'Brien and his lawyers thought they were getting with this injunction, it appears not to have worked very well.

Filed Under: catherine murphy, denis o'brien, free press, free speech, injunction, parliament, streisand effect

Police Officers Can Sue Newspaper For Publishing Descriptive Info, Raising Serious First Amendment Issues

from the publishing-factual-information-is-a-crime? dept

We just recently wrote about a troubling case in the 9th Circuit in which a court tried to "balance" free speech rights against state publicity rights. Now, over in the 7th Circuit, there's a troubling ruling that seems to suggest a particular privacy law might similarly override the First Amendment. The writeup at the Columbia Journalism Review (link in the previous sentence) is a really great overview of the case, or you can read the ruling itself.

In short, the Chicago Sun-Times published a series of reports investigating whether or not Chicago Police "manipulated" an investigation into a manslaughter case, involving a nephew of then Chicago mayor Richard M. Daley. That nephew, R.J. Vanecko, had apparently punched another man, David Koschman, leading Koschman to fall over and hit his head -- leading to a brain injury from which he died a few days later. The Sun-Times report argued that the police investigation was designed more to protect Vanecko, rather than bring him to justice.

In exposing the questionable nature of the investigation, the Chicago Sun-Times highlighted the key "police lineup" that the CPD had put together, showing Vanecko and five police officers. No eyewitness picked out Vanecko, but the Sun-Times report argued that the police had chosen officers who strongly resembled Vanecko to make it difficult to pick out who really was involved. In order to make this point, reporters at the paper used a public records request to get the lineup photos, but then also got the physical information about the other officers in the photo via the state's motor vehicle records database, controlled by the Illinois Secretary of State.

The point, obviously, was to show the physical resemblance to Vanecko. However, the officers in question sued the Sun-Times, arguing that publishing the information from the motor vehicle database, violated the Driver's Privacy Protection Act (DPPA) of 1994. That law bars the disclosure of "personal information" from the various Department of Motor Vehicles' records. It was originally passed after people had been using information in those databases to find and harass people they disagreed with politically.

The Sun-Times argued, reasonably, that the First Amendment should protect its right to publish this information. However, both the lower court and the 7th Circuit appeals court have now both disagreed.

The appeals court starts out by first noting that the information that was published -- the police officers' "approximate date of birth, height, weight, hair color, and eye color" are "personal information" as defined by the DPPA. That seems ridiculous enough already, given that those aren't exactly things that are private information for the most part. From there we get to the First Amendment analysis. First, the court says that there's nothing unconstitutional about the DPPA's prohibition on obtaining the information, since that doesn't involve any expression. The Sun-Times argued that even so, the purpose here was to stifle reporting by denying the press access to such information. It pointed to the recent ACLU case we covered, where the court said a law banning the recording of police violated the First Amendment, but the court doesn't buy it:

However, ACLU is distinguishable on several grounds. While the Illinois eavesdropping statute’s effect on First Amendment interests was “far from incidental” because it banned “all audio recording of any oral communication,”..., the same is not true of the DPPA’s prohibition on the acquisition of personal information from a single, isolated source. It can hardly be said that this targeted restriction renders Sun-Times’s right to publish the truthful information at issue here—much of which can be gathered from physical observation of the Officers or from other lawful sources (including, of course, a state FOIA request)—“largely ineffective.” Further, in forbidding only the act of peering into an individual’s personal government records, the DPPA protects privacy concerns not present in ACLU. If a member of the press observed one of the Officers in public—for example, during a traffic stop—he could publish any information gleaned from that interaction without offending the DPPA. By contrast, the Illinois eavesdropping statute operated as a total ban on recording police officers’ activities, even when they were “performing their duties in public places and speaking at a volume audible to bystanders.”

Now, how about the restriction on disclosing the information -- which seems to fall even more squarely into the First Amendment arena? Again, the court doesn't buy it. It points out that while it would be protected in publishing the information if someone else got it and gave it to the Sun-Times, that doesn't apply if the Sun-Times itself broke the law in getting the information:

The Supreme Court has established that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” .... Sun-Times, however, cites no authority for the proposition that an entity that acquires information by breaking the law enjoys a First Amendment right to disseminate that information. Instead, all of the many cases on which Sun-Times relies involve scenarios where the press’s initial acquisition of sensitive information was lawful.

The court then has to do some rather fancy tap dancing to get around some of its previous rulings that said similar activity was protected free speech, by arguing that the "intent" matters.

Sun-Times fares no better in its invocation of precedent from this circuit. Sun-Times points to our opinion in Thomas v. Pearl, 998 F.2d 447, 449 (7th Cir. 1993), in which a college basketball coach secretly taped conversations with a player about illegal perks offered by a rival university, as an example of what Sun-Times terms “theoretically unlawful news-gathering techniques inherent to successful journalism.” Yet in Thomas, we determined that the coach lacked the requisite intent to be found in violation of federal wiretapping laws, id. at 452–53, and thus had not unlawfully obtained the in-formation at issue. Sun-Times also cites Desnick v. American Broadcasting Cos., 44 F.3d 1345, 1355 (7th Cir. 1995), for the proposition that the First Amendment protects a broadcaster’s “surreptitious, confrontational, unscrupulous and ungentlemanly” investigatory tactics. But Desnick’s ruling applies only insofar as “no established rights are invaded in the process.” Id. Here, of course, Sun-Times’s acquisition of the Officers’ personal information invaded their established rights under the DPPA. This is a crucial distinction. Although Sun-Times claims that, in acquiring and disclosing truthful information, it engaged only in “perfectly routine, traditional journalism,” it cannot escape the fact that it acquired that truthful information unlawfully.

The thing that I don't get is why it's the Sun-Times that is being seen as the one who broke the DPPA here. It seems more like it was the Secretary of State, who gave the Sun-Times the information which it controlled in the first place. But the Court seems blind to that concept:

We would face an analogous scenario if a third party had obtained personal information in violation of the DPPA and transmitted that information to Sun-Times, who subsequently published it. But that is not our case. Here, there is no intervening illegal actor: Sun-Times itself unlawfully sought and acquired the Officers’ personal information from the Secretary of State, and proceeded to publish it. Where the acquirer and publisher are one and the same, a prohibition on the publication of sensitive information operates as an effective deterrent against the initial unlawful acquisition of that same information. Such acquisition carries little benefit independent of the right to disseminate that information to a broader audience. We therefore conclude that the government’s deterrence interest is both important and likely to be advanced by the DPPA’s ban on Sun-Times’s disclosure of the Officers’ per-sonal information.

But that doesn't make much sense. Asking the Secretary of State for the information seems like a perfectly reasonable journalistic tactic in investigating a story.

The court then goes into even more troubling waters, as the judges basically decide that the information here isn't that important anyway, and that also undermines the First Amendment claims. It notes that in other cases, courts have found that "privacy concerns give way when balanced against the interest in publishing matters of public importance." Again, we're back to this idea that there's some sort of mythical "balancing act" between the First Amendment and privacy rights. And, when the court puts these two things on the scales in this case, it thinks the balance goes to privacy, rather than the First Amendment. Why? Because it finds that the "personal information" about the officers really isn't that important to the story.

While Sun-Times provided details of the Officers’ physical traits to highlight the resemblance between the “fillers” and Vanecko, most of the article’s editorial force was achieved through publication of the lineup photographs that Sun-Times obtained through its FOIA request—the value added by the inclusion of the Officers’ personal information was negligible. Each Officer’s height is evident from the lineup photographs, while their weights and ages are relevant only to the extent that they increase the Officers’ resemblance to Vanecko—a resemblance that the photographs independently convey. And, although identifying the Officers’ hair and eye colors may add some detail to the published black-and-white photographs, their personal information is largely redundant of what the public could easily observe from the photographs themselves. Therefore, Sun-Times’s publication of the Officers’ personal details both intruded on their privacy and threatened their safety, while doing little to advance Sun-Times’s reporting on a story of public concern.

This seems immensely troubling for a variety of reasons, not the least of which is that it puts the court system into the editing business, deciding which facts are actually relevant to the story, and which are somehow unnecessary. The court notes that it's possible a case "involving less privacy concerns or information of greater public significance" would come up with a different result, but that's also ridiculous. First of all, how is someone's height and eye color such a great "privacy concern"? Second, this again seems like a pretty clear restriction on the freedom of the press. It's not something that you "balance." The First Amendment is pretty clear that Congress cannot pass a law abridging the freedom of the press. And yet here, the court seems to think that it's okay, as long as it's "balanced."

Because of this, the police can now sue the paper for daring to reveal their eye color and whatnot. This seems like a terrible ruling for the First Amendment, and even while the court tries to limit it to the specific facts of this case, it seems likely that this particular ruling is now likely to be cited against reporters quite a lot.

Filed Under: 7th circuit, chicago, chicago police, david koschman, dppa, first amendment, free press, free speech, privacy, richard daley, rj vanecko