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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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« What's So Fair About Fair Use? | Main | Burst update »

March 13, 2005

On Protecting Journalism and Democracy

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blogshine110.jpg One of the gathering storms over Internet speech has broken. On Friday a Santa Clara County Court judge ruled [PDF] that in Apple v. Does, Apple Computer's trade secret claims trump both California's reporter's shield laws and the reporter's privilege under the First Amendment. Specifically, the judge ruled that a journalist's Internet service provider (ISP) can be compelled to reveal the identities of the reporter's confidential sources and other unpublished information when trade secret is claimed. And it's not only "bloggers," or online journalists, who are affected by this ruling. The judge was very clear that this would apply to any journalist's private email records.

The opinion [PDF] is an interesting read in terms of rhetorical structure. The judge defines the law surrounding free speech as "rife with complexities and restrictions" and the law surrounding the "right to protect intellectual property" in California civil and criminal law as "undisputed." From there it's only a hop, skip, and a jump to calling the reporters "fences" in stolen goods. It's not hard to imagine how badly the Diebold case might have turned out with a slightly different set of facts and a judge with a similar take on our vague, messy, ragged, complexity-ridden speech-protection laws vs. clean, pure, solid, "undisputed" property-protection rights.

I pointed to it earlier, but Ernie Miller and Susan Crawford have an exchange that's well worth the read for exploring the question of how we identify speech that merits protection under the First Amendment and reporter's shield laws. Professor Crawford argues for distinguishing and protecting speech that's important to the democratic process; Miller, meanwhile, argues that the First Amendment ought to protect a democratic culture, which "incorporates a wider view of what is protected, such as popular culture and non-political speech."

Before I sign off, let me explain what that little "Blogshine Sunday" icon is doing at the top of this post. Not long ago, I blogged about the OPEN Government Act [PDF], newly proposed legislation that would help clarify that online journalists are entitled to the same rights as traditional print journalists. Specifically, it would provide access to Freedom of Information Act (FOIA) fee reduction/waivers for people regardless of institutional association.

Texas Senator John Cornyn is a co-sponsor; here's what he had to say when it was introduced (emphasis, mine):

The news media, of course, is the main way that people get information about government. The media pushes government entities and elected officials, beaurocrats, and agencies to release information the people have a right to know, occasionally exposing waste, fraud, and abuse.... But we've also seen in recent years the expansion of other outlets for sharing information outside the mainstream media, to online communities, discussion groups, and blogs.

I believe all these outlets are -- can and do -- contribute to the health of our political democracy. But let me make this clear, Mr. President, this is not just a bill for the media, lest anybody be confused. This is a bill that will benefit every man, woman, and child in the United States who cares about the federal government, cares about how the federal government operates, and ultimately cares about the success of this great democracy.

That's what important about the debate over online speech: the battle to ensure that we have a truly healthy, functioning democracy. As I wrote before, I can't imagine that we've ever needed this kind of legislation more than we do right now. If you agree, join me by grabbing a button at Blogshine Sunday and writing a few words about it.

Post script: As I was writing this post, Aaron Swartz published his contribution to the cause: "Blogshine Sunday: US Greenlights, Funds Genocide." Highly recommended.

Comments (1) + TrackBacks (0) | Category: Speech


1. Crosbie Fitch on March 14, 2005 5:52 AM writes...

Aren't the details of a journalist's sources their Intellectual Property?

Moreover, aren't the identities of the whistleblowers also the IP of the whistleblowers?

The judge has effectively decided that it is equitable to sequester the IP of the journalist and their sources to grant it to Apple as compensation for the theft and public release of their IP. Presumably Apple can do what they want with the IP they've been granted, i.e. retain it or release it?

The real question is perhaps not whether journalists have a right not to have their IP wrest from them, but whether a judge is able to justly appraise the value of each party's IP and confiscate one party's IP to compensate the other's loss?

Note that unpublished IP (secrets) is the only kind of IP bearing any semblance to real property. Published IP is a contradiction in terms.

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