Bloggers, Forum Posters, Facebook Not Protected by Journalists Shield Law

The press still has freedom. There are some specifics on this.

The issue is that a blogger posts, say, "Obama proposes new law about kumquats."

A commenter comes to the blog and posts something slanderous or defamatory about Obama, perhaps that he's using a counterfeit birth certificate and was actually conceived in Pago-Pago during the annual "Hatred of America" orgy, then delivered in Mecca by a Muslim fundamentalist under the watchful eyes of seventy-two virgin suicide bombers. And he was baptised in the blood of Jews.

Now the secret service shows up and says "Hey, that guy looks, um... dangerous. We want to know who it is."

And the blogger goes "nope, shield law, I'm protected because I'm a journalist and there's freedom of the press."

Well, here's the thing about the shield law. Number one, the journalist has agreed to keep his informant's identity confidential. Number two, the journalist actually knows the informant's identity. And number three, the journalist has exerted some editorial control over what got published. So presumably, that journalist - and his editor - have subjected the published information and its source to some fact-checking and background investigation.

But what we have on this blog is some random jackhole on the internet who wrote some vitreous bile and clicked "post." And while he may have an expectation of anonymity, he does not have an individual understanding with the blogger that he will provide this information on condition of anonymity. His expectation of anonymity comes exclusively from the simple reality that the blogger does not know his identity. And since the blogger doesn't know that identity, he has no way to confirm the reliability and accuracy of the source.

Now, in a real-world journalism situation, the blogger would be contacted personally and informed that there was important information he should know about the President. He would agree to discuss this information on the condition of anonymity, and then get the information.

Looking at the content of that information, he would edit it down to the newsworthy part - "Obama using counterfeit birth certificate" - and exert reasonable efforts to determine if this was true. Failing to have a reliable amount of evidence, he would then examine the source and determine whether it was credible. And upon learning that there is no annual "Hatred of America" orgy in Pago-Pago, the credibility of that source would drop remarkably.

The reason the shield law exists in the first place is that if informants cannot rely on anonymity, they will not come forward with valuable information. But this is not an informant with valuable information. It is a random commenter on a blog spewing hate speech and bullsquat in all directions. And if random commenters on blogs were to stop doing that, I think we would all give a collective "f!#k yeah" that could be heard from orbit.

So I don't just agree with the decision, I say "it's about damn time."

What people are legitimately concerned about is that the authorities can make overbroad requests for information, like for example they would want the entire blog database and all traffic logs. And this would allow them to scrutinise the data for not just this guy, but also everyone who disagrees with the current situation and would like it changed. Having identified those people, the authorities can connect the dots with their other online activities and find other things to prosecute or harass them for.

But the thing is, they've done those things. Joe Militant speaks out on a blog about legalising marijuana, the government seizes the records from that blog by pointing to some insane freak... and then they connect Joe's IP to a Facebook account, which they connect to a forum, where they browse through his posts, and they find one about how he grows all his pot plants in a secret room in his basement but the cops will never find it because XYZ.

Armed with knowledge of XYZ, the cops break into Joe Militant's house and go directly to his secret basement room where he grows pot, then arrest him and all his roommates... for doing something they've actually done.

Now, I agree, if you are doing illegal crap and talking about it on the internet... you should probably be concerned about protecting yourself. And I agree, if your blog's visitors fall into that category more often than not, you should probably be concerned about protecting them. I'm not going to pass judgment on whether what you are doing ought to be illegal, but if the reality of the situation is that it's illegal, then you need some way to defend yourself against an overzealous government.

But invoking the shield law is not the right way to do it. It's an abuse that needs to stop.

Brian,

Does this automatically exclude outlets that use a blogging platform, or is it more targeted? What I'm wondering is, are they equating the technology with a standard of media responsibility without taking professional practices into account?

It would be odd indeed if the same story were protected on static pages and not protected because it used a blog-style CMS.


Paul

Personally, and this may go against the tide, but I agree with the decision. You absolutely should not be able to go online and tell a bunch of lies and cover yourself with 1st Amendment privilege. And right now, that goes on far too much. Maybe after a few well-publicized lawsuits, that won't happen so much.

Just because you put words in print, be it on paper or in pixels, that does not make you part of "the free press" or any other type of press.

The act of writing is not the same as journalism.

Clearly your idea of press and mine are not the same.