In Defense of Journalist Bloggers
This is a time of journalistic upheaval, from newspapers to radio, magazines to the Internet itself, and it’s raising a question that’s more important than location a source of income: what, exactly, is a journalist and when do they get legal protection? Gawker Media can be credited for possibly leading the U.S. to making a decision on this point.
With the rise of the Internet, questions have circled various groups on who is a journalist, what makes a journalist, and when they deserve legal protection – the discussions are as to be expected, with many Old Media publications and journalists sneering at those that didn’t climb the ranks for 20 years to reach their position, or go to so-called journalist school, and the Internet-based proclaiming their own high status.
The irony is that as Old Media continues to collapse, those very same institutions and individuals that once panned the digital world are now scrambling to embrace it – columnists now have not only printed columns but online blogs. Do these old school journalists get protection when they work online, sometimes exclusively? They’ll tell you yes.
There is no defending the dishonest and dirty tactics of Gizmodo/Gawker in the recent iPhone dustup, since they effectively bought stolen equipment and milked it for traffic, disregarding the fact that it was Apple’s property. Apple should have been contacted and the reporting presented in a more professional and straightforward, un-hyped approach, but, sadly, this is not uncommon for Gawker.
However, when Gawker was contacted by Apple, and the phone promptly returned, it should have ended any and all proceedings between the two companies – not followed by a court-approved search and seizure on the individual at Gawker responsible for the reporting. Ignoring the obvious questions of why Apple would push legal action after receiving their property undamaged and what the police expected to find at the blogger’s residence, it brings to the fore the fact this wouldn’t have happened with a traditional journalist at a traditional media entity.
Apple likely went after Jason Chen because he works for a blog network, and not the New York Times, entirely disregarding the fact that it was journalism – the media coverage of the new iPhone was essentially an enormous, free PR event, for which Apple usually works hard to achieve. Yet they seem to be upset. Gawker may not have the name recognition or legal muscle that some traditional Old Media outlets have, but that’s not an excuse to be abusive of individuals, corporations, and the law.
What it comes down to is the definition of journalism in the digital age: are bloggers journalists? The answer should be akin to a bit of mathematical logic, stating that not all bloggers are journalists and not all journalists are bloggers – with a catch. If this case goes to court, as it appears to be doing, the appropriate legal definition of journalism should be expanded to include individuals that work for online news organizations and those that participate in legitimate journalistic activities on a regular basis, with blogger status becoming finally irrelevant.
This situation has been at least ten years in the making, and it’s not entirely a surprise that Gawker, one of the most trafficked, hated, and beloved blog networks to ever exist, is involved. What comes next could end up significantly changing the digital landscape, for better or for worse – it’s important to believe that the courts will, for once, fully understand technology and its uses. If not, the reincarnation of Old Media will die right along with online journalism.
Kyle can be found on his blog, on Facebook, via email, or on Twitter.
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1. “Gawker Media can be credited for possibly leading the U.S. to making a decision on this point.”
I suspect that when this is all over, Gawker will be condemned rather than credited. The facts of this case are such that should this case wind out to its ultimate conclusion, the result will likely be a restriction on the laws that shield journalists sources and source materials. Anytime a case goes forward that tests these important statutes, you really don’t want a fact situation where the journalist in question has broken the law in order to obtain the material they seek to protect. This is particularly true given that revealing Apple’s trade secrets and the contents of the coming version of iPhone are unlikely to rise to the level of information that it is important for the public to have. All the Gizmodo piece did was satisfy the curiosity of those wondering what was in store from iPhone. Is this really vital information that journalists should break the law to obtain in order to benefit and educate the American public?
2. There really is not a looming, outstanding question as to whether bloggers are entitled to the protection of the shield laws. While, in some states, they are not so protected, in California, where this all occurred, the courts have already ruled that bloggers are protected by the shield laws like any other journalist. The question has been answered.
The matter at hand will not turn on whether or not Jason Chen is entitled to the state and federal shields afforded him as a journalist to protect his sources because Chen is a blogger. It will turn on whether or not the protections should apply to ANY journalist if they break the law to acquire the source material. I suspect that if what the DA is looking for is to find out the identity of the person who found and sold Gawker the phone, the protections will apply. But if the DA is looking for evidence that Chen and/or Gawker committed a crime, it may be a very different result.
3,”However, when Gawker was contacted by Apple, and the phone promptly returned, it should have ended any and all proceedings between the two companies – ”
First of all, there are no proceedings between the two companies. Apple has not yet, to the best of my knowledge, commenced a civil suit against Gizmodo. Further, based on the O’Grady case, Apple is unlikely to bother unless Gizmodo is found to have been guilty of a crime. While Apple may have asked the DA in Santa Clara county to investigate this as a criminal matter -which is well within Apple’s right to request and the DA’s right to investigate -this is, at this moment, strictly a criminal matter, and has nothing to do with Apple whatsoever.
I also don’t understand why you feel that once Gawker gave back the iPhone -after they had already exposed the trade secrets – then the matter should have been finished. Had they done so before ripping it apart and publishing the trade secrets, i could see your point but after? Makes no sense at all.
Hey Rick,
I was actually expecting a comment from you, given your area of expertise – good to know I was right. I’ll respond linearly.
1) I don’t disagree that Gawker behaved shamefully, as per usual, or that they’ll end up being condemned by the courts. I was merely commenting that I think they will be credited, not praised, for bringing this issue to court – no matter the outcome. Maybe even in the same fashion that “Brown v. Board of Education” is remembered.
I also don’t consider this need-to-know journalism, but I would imagine an argument can be made that it’s still journalism, given the employer (Gawker), and what they have done is no worse than tabloid magazines purchasing and publishing info/photos on celebrities – something the courts continue to hold up as a legitimate right of both these trashy publications and the photographers involved.
2) I was imagining a more widespread decision on blogger shield laws, and the actual recognition of them, instead of a state-by-state basis dependent upon the whims of that state’s politics.
I’ll agree that it won’t turn on the shield laws, but the idea of theft – I think Gawker/Jason Chen’s behavior is ethically reprehensible, but not necessarily illegal, since they bought it from someone who claimed to have attempted to return it to Apple and then ultimately returned the phone to Apple anyway. If anything, the “source” is the thief, and you have the right idea on how that will change the case.
3) My opinion on the arena of Apple’s potential request to the DA for a search and seizure is that while it may be legal, it’s a low blow. Gawker returned the phone as soon as prompted by Apple, in an apparently amicable fashion, and at an out-of-pocket loss (disregarding their traffic revenue from this situation).
Are these really trade secrets though? All they published were the specs of the phone, not the details of how to manufacture it or any of its components, and it’s my understanding that gadget specifications (RAM, screen size, etc.) do not count as trade secrets, especially since they’re publicly available after the gadget is put on the market. I see this as akin to someone posting on the new bottle design of a Coca-Cola product, and not it’s formula – the formula being the trade secret, in this case.
Keep in mind that I’m not defending Gawker or Jason Chen – I wouldn’t have behaved as they have and I never will. I probably wouldn’t have even done what the mysterious “source” did. Rather, I’m defending the idea that some bloggers are indeed journalists and should be treated as such – would this have proceeded in the same fashion if Popular Science had posted unreleased specs on an upcoming iPhone? I highly doubt it – at a minimum, there would have been no raids.
–Kyle
In response to another comment. See in context »Hey Kyle-
1. I see what you’re saying about ‘credited’. And I agree with you that Gawker/Gizmodo’s role does qualify them as journalists. That’s kind of the problem. If this situation results in a limitation on the shield laws because of Gawker’s behavior as journalists, its bad for all journalists. It is possible that a question could turn on whether they qualify for the shield protections, thus raising the question of whether they meet the test of ‘journalists’ but I seriously doubt that this is the direction the issues will go – far more likely that the pivital question will revolve around whether source material is protected when it was illegally obtained by the journalist seeking to expose it. We already know that the protections extend when the material is illegally obtained by a third party, but the question of whether it is protected when the illegal act is committed by the journalist has not been addressed. I suspect that if it is, it will not have the result bloggers or print journalists would like.
2. Highly unlikely that you’ll get a more widespread decision on whether bloggers are protected. It is, largely, a state issue. Also – it may not be fair to say to this is being determined based on state politics. To date, there has been no legislation anywhere that specifically protects a blogger as a journalist. The various approaches have been determined by state courts which, arguably, are not providing political decisions. The opportunity for a more widespread ruling on this will likely not come until there is a situation where there is a conflict of laws – ie., somehow the law of a state which does not protect bloggers comes into conflict with the law of a state that does, leaving it to the Supreme Court to resolve the conflict.
3. I still have to disagree with you on the DA’s actions being a low blow. I also don’t quite get why you feel that Gawker’s behavior is somehow mitigated by giving the phone back to Apple. Gawker had already done their damage. This is like me stealing your car, getting into a crash and then dropping off the keys at your house with a nice note. I may have given you back the car but the damage is already done. Gawker did not give it back until they had stripped it down and published all the info. that Apple wished to protect. I don’t think Gawker gets any points for giving it back after they had gotten all they wanted out of it.
Further, they are absolutely trade secrets. Apple has the right to decide when they want the information in the marketplace -both legally and ethically. As you note, it all becomes public once the phone is in the market -but it had not yet been placed in the market. Does it seem fair to you that Apple’s competitors now have advance warning on what they have to do to their next designs having been given an early heads up on what’s coming? If Apple has made advances, they have the right-again, legally and morally – to decide when those advances are to be exposed to the market. It is not the call of a publication to do so, especially if they illegally purchased stolen information to do so. Marketing plans are as much trade secrets and the components in the product. Thus, if a journalist sneaked into the Coke factory, stole the designs for the new coke bottle design and published it, that would be illegal. Theft is theft and Coke has the right to decide when, where and how they introduce their bottle so as to give their product the best chance of succeeding in their opinion.
I recognize that you are not defending Gawker and Chen. I also completely agree that ALL bloggers should be entitled to the protections which allow them to protect a source and all source materials. But that is not the issue here. The issue here is whether a blogger or any other journalist is to be given a pass entitling them to break the law. I can’t imagine why this would be the case. Protecting a source is one thing. Breaking the law to acquire the source material is something very different.
In response to another comment. See in context »Well, you make good points, even though I don’t agree on all fronts – but I’ll acknowledge that they’re good and valid.
–Kyle
In response to another comment. See in context »I’m not sure I am tracking the legal argument you’re making Rick. Are you saying there was a news-gathering law broken? Or are you saying that publication of the material broke the law? Those are two very different parts of the law.
Your Coke analogy is right — breaking and entering is against the law and that’s not a First Amendment issue. But that’s not the story here right? Or did I miss something?
In response to another comment. See in context »Wait, for some reason I missed the post where you answer the question. Okay, now let me say I am dubious this is a case of a news-gathering tort. The law is fairly clear that the journalist has to know a law was broken. Unless there’s a law on the books (and maybe there is) that outlaws selling something you find, then there’s a case. Otherwise, we’re in the ethics realm.
In response to another comment. See in context »Hey Michael -
What I’m saying is that if the journalist broke a law, in the case receipt of stolen goods IF the finder of the lost iPhone is guilty of theft (which he may well be under California law)- then the source material which was acquired illegally by the jourmalist could make it subject to the search warrant and not be protected by the shield protecting sources and source materials.
Interestingly, the courts have held that journalists are protected even if the third party committed a crime. So, if the finder had broken the law and then handed it over to the journalist, I think the shields apply. But when the journalist pays 5k for stolen property, and thereby becomes the target of an investigation for breaking the law, the source material may no longer be protected by the shield.
Does that help or did I make it worse??
In response to another comment. See in context »No, that makes perfect sense actually. So if the finder of the phone is guilty of theft–and Gawker paid for the phone when they knew the tale of how it was obtained–I agree with you: big trouble for Gawker and a bad precedent for the media. But a good lesson for the media too in this day and age, because I suspect, as you do, that the payment would be the incriminating part.
In response to another comment. See in context »Thanks, I was hoping you would weigh in on this, I respect your opinions Kyle and you wear the hats of blogger, businessman and geek, if you don’t mind the term!
I too feel it should have ended when the phone was returned in good faith with no negotiating or stalling as it is reported that it was.I think Apple created the conditions for all this to happen, they lost it, and as such they share some blame- seems to me they are trying to pretend this is a perfect world. I don’t know how true it is, but it is reported that Apple was contacted by the finder and they blew him off, who he talked to probably had no idea what was going on, anyway when they lost it, they bear some responsibility in this given that technology is almost addictive, especially if it is secret and these guys just did a story. I think they are lucky to have the phone back frankly.
You guys are much more forgiving than I!!
I think where my opinion departs from your own is when you say “and these guys just did the story.”
They didn’t just do a story. They allegedly paid $5,000 for an item when (a) they knew it belonged to someone else, (b) they knew it was not the property of the individual selling it to them and (c) they new it involved trade secrets that the rightful owner did not want exposed.
Now, how the finder of the phone brought it to Gawker, handed it over to them and said, ‘do your thing’, I would absolutely be agreeing with you. But that is not what happened.
When Gawker purchased the phone with the intent to expose the contents, they may likely have purchased stolen property. Now, if it turns out that the phone does not qualify as ’stolen property’, I’ll come over to your side. I don’t think that is going to happen.
With respect to the fellow attempting to contact Apple and getting blown off, that is also what I am told. But that does not get him off the hook – particularly as he knew very well what he had (or he wouldn’t have been asking $5,000 when an iPhone retails for significantly less.) Under California law, not to mention the laws of decency, he could have (a) taken it back to the bar where he found it knowing someone would come looking; (b) driven it over to Apple as he lived in proximity to the company (c) handed it over to the police or (d) simply held onto it until Apple came calling.
What if I found something of value that belonged to you and then turned around and sold it for a bunch of money. How would you have felt about that? Should Apple – or anyone else – be treated any differently?
I know there is a tendency to always feel badly for the smaller guy in a situation, but if the smaller guy here broke the law, why should they be treated differently than the rest of us?
As Kyle acknowledges, even if it turns out that nothing illegal happened, you have to admit that Gawker’s behavior was, at the least, pretty sleazy, no?
In response to another comment. See in context »You know, you turned my thinking Rick, Apple has suffered a huge loss in the release of that little bit of info, it is competitive to the MAX. Your right too that I see it as little guy vs. big giant! They should have called that phone and said “thats our phone, show it to no-one, talk to no-one, we have $20,000 on the way over to you if you do that”- call me nuts, but that’s a drop in the bucket to them (would I make a good executive:) ) Kidding, I see your point, and I am the one raising hell about American competitiveness and all that, yeah, you are right! trade secrets should be protected, especially in this area.
In response to another comment. See in context »Nothing new here about the controversy over who is a journalist and who is not. The debate has almost always turned on a phrase from Kyle Brady’s initial posting: whether somebody is involved in “legitimate journalistic activities on a regular basis.”
The phrase “journalistic activities” is not easy to define, but for the most part judges and academic scholars have inched their way toward an effective definition. “On a regular basis” is sometimes a matter of opinion–does “regular” mean once a day, once a week, once a year, etc.? Usually, though, minds can meet on the meaning of “regular.”
The stickiest word, naturally, is “legitimate.” In my True/Slant realm of wrongful convictions, for example, here is a hypothetical that’s not entirely hypothetical: If somebody with a master’s degree in social work who makes her living as a social worker for a local government agency becomes interested in a prisoner’s claims that he is actually innocent of rape, and after investigating the social worker publishes her findings on a local blog operated by a long-time local magazine writer, does the social worker deserve the status of “journalist”?
I’d like to say yes if that status afford the social worker certain protections under state law. But I simultaneously understand that it is not always desirable for the craft of journalism to define anybody who publishes anything as a “journalist.”
Steve,
I agree that it’s difficult, but, at least in my mind, there needs to be a clause that includes individuals not necessarily working for a news organization but maybe running an investigative bit on their own for some reason. It’s not fruitful, however, for everyone with a Blogger or Wordpress account to be considered journalists, since then the term means essentially nothing.
I would argue that your scenario should pin that person as a journalist, yes.
–Kyle
In response to another comment. See in context »[...] trade secrets. Divulging trade secrets is crime as became apparent in a discussion here on T/S of Kyle Brady’s comments about this [...]
I was interviewing a computer forensics expert yesterday for a story and we happened to discuss the Gizmodo case. He provided a very important tip for all journalists who care about protecting their confidential sources and other sensitive information.
Journalists: Encrypt your laptop (he mentioned a free program called True Crypt) and set up a strong password. If you do, and the authorities seize your computer, you can assert your Fifth Amendment rights and refuse to give them your password. Unless either you or the case is so high profile that they are willing to spend the enormous amounts of money it would take to crack the password (according to the expert, we’re talking, like, sending it to Fort Mead and having the NSA spend billions of computer cycles cracking the password), your confidential sources and materials will be safe. Most local authorities, he said, don’t have the resources to do it.
That’s good advice. One of the cases I read – it might of been O’Grady but I’ve read so many on this week I honestly can’t remember – was right on point. The court refused to force the journalist to disclose his password if the underlying subject matter was protected by the shield laws. As a practical matter, you are also right that most jursidictions lack the ability to ‘crack’ the encrypted code, however, the authorities can take you court. If the judge orders you to turn over the password, and you refuse, you could face contempt charges and find yourself in the pokey.
In response to another comment. See in context »But at least a journalist gets the chance to go before a judge and argue for the protection of other sensitive data unrelated to the case. Confidential sources unrelated to the case should be protected even if a journalist gets into trouble, as Chen did.
In response to another comment. See in context »I’m not sure I’d consider myself a journalist, but since I’m a little paranoid about people stealing things from my computer, like maybe my novel-in-progress, or generally spying on me… I’ve been using it for over a year.
It’s fantastic and purportedly written by some government spooks who got a little upset by what they’d found out about inside Langley and such.
–Kyle
In response to another comment. See in context »[...] he or she had come across and reported on the lost iPhone. As blogger Kyle Brady pointed out in a post yesterday, Apple likely pursued Gizmodo’s Jason Chen because he is a blog editor. [...]
[...] he or she had come across and reported on the lost iPhone. As blogger Kyle Brady pointed out in a post yesterday, Apple likely pursued Gizmodo’s Jason Chen because he is a blog editor. [...]