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Seven Years of Serving and Studying the Legal Needs of Digital Journalism

We have some important news to share from the Digital Media Law Project. After seven years of providing legal assistance to independent journalism through various methods, the DMLP will soon spin off its most effective initiatives and cease operation as a stand-alone project within the Berkman Center. The upcoming changes will ensure that our work continues in a robust and sustainable fashion, and so, while those of us here are a bit melancholy to see the end of an era, we are hopeful for what comes next.

I wanted to take this opportunity to look back over the history of the DMLP and its accomplishments, and to talk a bit about what the future will hold for our work.

The Beginning

In 2007, a group of scholars and attorneys at the Berkman Center for Internet & Society recognized a growing problem for online speech: namely, that a vast array of bloggers, citizen journalists, and other non-professional writers were publishing information on the Internet without a solid understanding of their rights and responsibilities under the law. Those without legal training or resources were unprepared for challenges such as defamation, privacy, and copyright claims, and often ran into pitfalls when dealing with issues such as corporate formation, contract negotiation, and development of website policies.

While the Berkman Center had been providing legal services to online ventures for several years through the Harvard Law School Cyberlaw Clinic, this growing need among independent publishers was simultaneously too widespread for the Clinic to address through its existing service model and too basic in many specific instances to present a valid case-by-case training opportunity for law students. A different approach was required.   read more »

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DMLP Announcement: A New Report on Media Credentialing in the United States

The Digital Media Law Project at Harvard University's Berkman Center for Internet & Society and the Journalist's Resource project at Harvard's Shorenstein Center on Media, Politics and Public Policy are pleased to release a new report: Who Gets a Press Pass? Media Credentialing Practices in the United States.

Media credentials have long played a critical role in newsgathering in the United States, allowing journalists to gain special access to places and events denied to the general public. There are, however, many inconsistencies among regulatory standards for the issuance of credentials, and many circumstances where the decision of whether and how to issue credentials is left up to individual agencies with no regulatory guidance at all. Moreover, upheaval in the journalism industry has introduced new actors in the journalism ecosystem, complicating decisions by government agencies and private gatekeepers about who should be entitled to special access.

Who Gets a Press Pass? presents a first-of-its-kind analysis of this complex environment, exploring media credentialing practices in the United States through a nationwide survey of more than 1,300 newsgatherers.

"Media credentials represent one of the most important interactions between journalists and those who control access to events and information," said Jeff Hermes, director of the Digital Media Law Project and lead author of the report. "This study finds common threads that run through decisions by various types of organizations, as a starting point to make sense out of the vast array of credentialing practices in the United States."   read more »

Will E.U. Court's Privacy Ruling Break the Internet?

In 2012, a bevy of internet companies and web sites waged a successful campaign against bills in Congress -- the PROTECT IP Act and Stop Online Piracy Act (SOPA) --  meant to combat copyright privacy. In the face of this opposition, the proposals were dropped (although their legacy survives). One of the major claims by the opponents was that the bills would "break the Internet" by requiring the disabling of URLs and removal of online links to sites that include unauthorized uses of copyrighted materials (although not all agreed with this assessment).   read more »

Baidu's Political Censorship is Protected by First Amendment, but Raises Broader Issues

Baidu, the operator of China’s most popular search engine, has won the dismissal of a United States lawsuit brought by pro-democracy activists who claimed that the company violated their civil rights by preventing their writings from appearing in search results. In the most thorough and persuasive opinion on the issue of search engine bias to date, a federal court ruled that the First Amendment protects the editorial judgments of search engines, even when they censor political speech. This post will introduce the debate over search engine bias and the First Amendment, analyze the recent decision in Zhang v. Baidu, and discuss the implications of the case for both online speech and search engines.

Search Engine Bias and the First Amendment

When users enter a query into a search engine, the search engine returns results ranked and arranged by an algorithm. The complicated algorithms that power search engines are designed by engineers and modified over time. These algorithms, which are proprietary and unique to each search engine, favor certain websites and types of content over others. This is known as “search engine bias.”   read more »

Hear Ye, Hear Ye! Some Federal Courts Post Audio Recordings Online

While the propriety of video and photography equipment in federal courts is subject of ongoing debate and testing, a number of federal bankruptcy courts and three federal district courts make audio recordings of their proceedings available to the public for a nominal fee.

In his article for The New York Times "Room for Debate" feature on whether courts should eliminate human court reporters (spurred by the chaos caused by the recent resignation of a drug-addicted court reporter in New York), U.S. District Court Judge Richard G. Kopf casually mentions that proceedings in his court in Lincoln, Nebraska, are routinely audio recorded. The recordings are posted to the court's public online PACER database the same day.

PACER, short for Public Access to Court Electronic Records, is the federal courts' online case docket access system. Access to PACER requires registration, and fees are charged for accessing materials in the database.   read more »

Service and Research at the Frontier of Media Law

Earlier today the Digital Media Law Project released a new report, The Legal Needs of Emerging Online Media: The Online Media Legal Network after 500 Referrals. This report explores the large  body of data that we have gathered over four years of operating the DMLP's free nationwide attorney referral service for journalists, the Online Media Legal Network. Using this data, we have been able to identify notable patterns and trends in the legal needs of a substantial cross-section of the digital journalism ecosystem.  You can read the executive summary of the report here.

I am particularly excited by this report because it represents the intersection of the two core functions of the Digital Media Law Project: (1) providing legal resources to digital journalists to help them to thrive in the face of legal challenges; and (2) studying the nature of the online journalism ecosystem and the legal issues that enhance or inhibit its function. The staff of the DMLP (both past and present) and the member attorneys of the Online Media Legal Network (who routinely volunteer their time on a pro bono or reduced-fee basis) have made a substantial difference in the future of news, by ensuring that hundreds of new and innovative journalism projects did not fail because of legal pitfalls unrelated to their merit. With this new report, we have been able to leverage their tremendous efforts even further by using their service as a basis for a survey that we hope will benefit a much broader range of journalists, attorneys, and researchers concerned with the networked exchange of information online.   read more »

DMLP Announcement: Live Chat Session on Tax-Exempt Journalism (UPDATED)

UPDATE: The chat session scheduled for April 10, 2014 has been postponed.  We hope to have a rescheduled date soon, so please stay tuned.

This Thursday, April 10, 2014, at 1 p.m. ET, the Digital Media Law Project will be holding a live online session to discuss the legal environment for tax-exempt journalism in the United States. DMLP attorneys Jeff Hermes and Andy Sellars will review their experiences in helping journalism nonprofits seeking Section 501(c)(3) tax-exempt status from the IRS, as well as new DMLP resources for news organizations thinking about applying for a tax exemption.

Whether you're a journalism non-profit seeking a tax exemption from the IRS, or just interested in how the agency looks at news organizations, this session will give you the chance to learn and to ask questions about the IRS process, such as:

  • What is the IRS looking for when it evaluates a journalism organization's application for Section 501(c)(3) status?
  • Why does the IRS ask applicants certain questions about their operations?
  • Are there "red flags" that can cause problems with an application? 

We will post connection information and a link to the online session on the DMLP home page on Thursday morning. But before then, we're asking anyone who is interested to help us kick off the discussion by submitting questions to us via e-mail at staff [at] dmlp [dot] org.

We'll read all of the questions, and try to answer as many as we can during the session; of course, we'll take questions from the audience as well. Unfortunately, we won't be able to provide legal advice about specific organizations or their applications to the IRS -- that should be done in private with your own lawyer -- but we will surface general issues of interest to everyone.   read more »

A New Approach to Helping Journalism Non-Profits at the IRS

Today, the Digital Media Law Project has launched a new version of its resources for journalism organizations seeking a Section 501(c)(3) tax exemption for the IRS. As a project, we have been concerned with non-profit journalism from the beginning, providing informational resources for news ventures seeking to form as non-profits. Since the launch of our attorney referral service, the Online Media Legal Network, in late 2009, about a third of our clients have been non-profit journalism organizations; more have been individuals or for-profits interested in starting a non-profit news venture. We have worked with more than forty groups to find counsel to assist them in applying to the IRS for recognition of tax-exempt status.   read more »

With Cameras Banned in the Supreme Court, Undercover Video Emerges

People are discovering a recently-posted YouTube video that apparently shows both a portion of the oral argument in a campaign finance case in October 2013 and Wednesday's interruption of an oral argument before the U.S. Supreme Court.

The first half of the video says that it is shows the argument is in McCutcheon v. Federal Election Commission, No. 12-536, a case argued on Oct. 8, 2013 which challenges the constitutionality of federal limits on contributions to non-candidate political committees. The date stamp on part of the video matches the date that the case was argued. While the audio of the Justices and lawyers speaking can be heard, its impossible to make out the words. The scene, however, is clearly the courtroom of the U.S. Supreme Court.   read more »

Revised DOJ Regs Protect "Members of the News Media," But What Does That Mean?

On February 21, 2014, the U.S. Department of Justice released its long-awaited revisions to 28 C.F.R. § 50.10, the DOJ's regulatory guidelines (the "Guidelines") regarding investigations and prosecutions of members of the news media. The prior version of the Guidelines came under fire last year, when it was revealed that the DOJ had, without prior notification, obtained two months of telephone records from 21 phone lines used by the Associated Press. These records had the potential to reveal confidential sources and other sensitive information relating to ongoing journalistic investigations. At that time, I wrote about weaknesses in the Guidelines' protections against unwarranted interference with journalism.   read more »

Lawyers in the Vortex: When Attorneys Become Public Figures

There was substantial media coverage of the defense verdict in the recent "twibel" (i.e., libel via Twitter) case against singer Courtney Love. Although the case attracted attention for the medium in which the allegedly defamatory statements were made, the dispositive issue was a long-standing element of libel law that did not depend on Love's use of Twitter.  Specifically, the jury found that plaintiff Rhonda Holmes, a lawyer who briefly represented Love in disputes stemming from the estate of Love's husband Kurt Cobain, had not proved the degree of fault on Love's part necessary for Holmes to win the case.

Curiously, the level of fault that the court required Holmes to prove was "actual malice," i.e., knowledge on Love's part that the statement was untrue, or reckless disregard by Love for whether it was true or not. Under U.S. Supreme Court precedent, the actual malice standard is applied when the plaintiff is a public figure.   read more »

Montesquieu, Come Back! (The French Police Already Know Where You Are)

On December 19, 2013, the French Loi de Programmation Militaire (the Military Program law, or "LPM"), was enacted. Article 20 of the LPM, which will come into force on January 1, 2015, authorizes the government to require Internet Service Providers (ISPs) and web hosts to provide "information and documents processed or stored," including geolocation data and metadata in real time, without having to first ask for an authorization from a judge. The new law raises serious questions regarding separation of powers and the extent of administrative authority in France.

A Surveillance Law Both Broad and Vague

Article 20 of the LPM allows the Prime Minister to authorize specially designated agents from the ministers of police, defense, economics and budget to issue demands to ISPs for:

"information or documents processed or preserved by their networks or electronic communications services, including technical data relating to the identification subscription or connection to electronic communications service numbers, identification of all the numbers subscription or connection to a designated person, the location of the terminal equipment used as well as a subscriber's communications on the list of dialed numbers and callers, duration and timing of communications"   read more »

A Quick Thought on Bloggers, Opinion, and Today's Ruling from the Ninth Circuit

Earlier today, the U.S. Court of Appeals for the Ninth Circuit released its decision in Obsidian Finance Group, LLC, v. Cox, No. 12-35238 (9th Cir. Jan. 17, 2014), a case involving defamation claims brought against a blogger who wrote about alleged financial improprieties  in connection with a corporate bankruptcy. The case was the subject of considerable controversy among defenders of Internet speech, after a federal district court judge in Oregon ruled that the blogger, Crystal Cox, was not entitled to First Amendment protection under the Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Gertz imposes a baseline negligence standard in defamation cases, but the district court held that Cox was not entitled to Gertz's protection because she was (a) not a journalist and (b) writing only about matters of private concern.

The Ninth Circuit properly reversed, finding that the First Amendment protects bloggers no less than the institutional press and that Cox was writing about issues of legitimate public concern.  On retrial, the plaintiffs will have to establish that Cox was negligent in publishing the statements at issue -- and that's all well and good.  I want to spend a little time, though, thinking about the tail end of the decision, in which the Ninth Circuit discusses a specific group of Cox's statements that both the Ninth Circuit and the district court held to be non-actionable opinion.   read more »

California Judicial Council Recommends Repeal of Law Criminalizing Juror Internet Use

In August 2011, California adopted a statute making it a crime for jurors to use social media and the Internet to do research or disseminate information about cases. Now, two years after the law went into effect, the state's Judicial Council has recommended that the statute be repealed.

The Judicial Council adopted the recommendation (item E on the Consent Agenda) during its Dec. 13, 2013 meeting (audio), and will advocate for the repeal during the 2014 legislative session.

The statute, 2011 Cal. Laws chap. 181 (effective Jan. 1, 2012, codified at Cal. Penal Code section 166(a)(6)), expanded the state's jury instructions admonishing jurors not to use the Internet, and provided that "willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research" could be punished as civil or misdemeanor criminal contempt of court.   read more »

Wrapping 2013 at the Digital Media Law Project

Here we are again, at the end of another year with snow on the ground and Harvard University's winter shutdown rapidly approaching. Tomorrow, the staff of the Digital Media Law Project will be off to spend time with friends and family until Harvard's doors reopen in 2014; but before we go, I wanted to take a quick look back at this year's highlights at the DMLP.

First and foremost, this fall saw the long-deserved promotion of our staff attorney, Andy Sellars, to Assistant Director of the DMLP. Those of you who have had reason to meet Andy will understand how easy this decision was; those of you who haven't had a reason, find one - we get him out into the real world as much as possible.

2013 also saw our formal transition to a new name, "Digital" taking the place of "Citizen" in our project title. This change was a long time in coming, and reflects the evolution of online journalism from a field of individual voices speaking through discrete websites to an online environment where professionals and citizens, institutions and independents, share and develop information in a networked manner. While we continue to strongly support independent journalists and their legal needs, we also consider these needs in the larger framework of the legal issues affecting networked journalism and let our experiences with our constituency inform our future research and action agenda.   read more »

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A Lesson in Metadata: Harvard Bomb Hoax

[We are delighted to run this piece by our friend and Berkman Center colleague Ryan Budish - eds.]

On Monday morning, those of us who work at Harvard found our phones buzzing with activity as we were warned to stay away from four evacuated university buildings because of bomb threat. For those of us who were near the Boston Marathon this spring, these kind of threats seem particularly scary. Thus, the fact that a Harvard sophomore appears to have created fear and distracted our first responders from real work, all to postpone a final exam, is particularly disgusting. So let me get this out there: I’m glad he was caught, confessed, and will be punished.

But what I want to talk about is the power of metadata. In defense of its bulk phone record collection program, the government has repeatedly insisted that the data it collects is “just metadata.” The implication is that metadata creates no invasion of privacy because it isn’t the content of the communication. In short, surveillance isn’t surveillance unless it captures the “what” of your communications; the “who”, “when”, and “where” doesn’t count.   read more »

Ninth Circuit Starts Live Streaming, As Federal Camera Test Continues

In early December, the Ninth Circuit Court of Appeals announced that it would provide live-streams and archived video of oral arguments on its web site, starting later in the month. This makes it the only federal appeals court to offer online video coverage of its proceedings. [UPDATE: The court is now offering streaming audio as well.]

Several state appeals courts (such as the Massachusetts Supreme Judicial Court, the California Supreme Court, the Florida Supreme Court, the Michigan Supreme Court, and the New York Court of Appeals) already offer online video of their proceedings. (The Radio Television Digitial News Association has a compilation of court camera rules in all 50 states.) The U.S. Supreme Court does not allow cameras, but does release audio recordings of its arguments.   read more »

French Court: Claim of First Amendment Rights in Search Results Inconsistent with "Neutral and Passive Role" as Host

On November 6, the Paris Tribunal de Grande Instance (TGI) ordered Google and Google France to withdraw and stop displaying in their search engine results, for a period of five years, nine pictures of British citizen Max Mosley. By doing so, the TGI refused to consider Google as a mere Internet intermediary that provides hosting and/or caching functions. And although the TGI stopped just short from explicitly calling Google an editor, it required that Google build a filtering system to automatically block the pictures at stake and thus provide Mosley with obscurity for his actions.   (The decision is available here in French, with a link to a Google Translate English version.)

Mosley's Initial Lawsuits

Mosley is a former President of the Fédération Internationale de l'Automobile, which manages the Formula One racing championship. He is also the son of Oswald Mosley, who founded the British Union of Fascists in the 1930’s. 

In March 2008, the now defunct UK tabloid News of the World published images of Mosley taken surreptitiously during a sexual party, calling it a "sick Nazi orgy.” The tabloid also posted on its site an edited version of the video from which the images had been extracted, but removed it voluntarily after receiving a letter from Mosley’s solicitors.

Mosley sued News of the World in the UK for invasion of privacy, also claiming that the sexual party did not have a Nazi theme, and sought an injunction to restrain the tabloid from making the video available.  The High Court found that publishing these images breached Mosley’s right to privacy.   read more »

Getting Dirty to Protect Crowdsourced Data and Public Information

Yesterday, the Digital Media Law Project joined an all-star cast of organizations (including the American Civil Liberties Union, the ACLU of Kentucky, the Electronic Frontier Foundation, the Center for Democracy & Technology, the Public Participation Project, and Wendy Seltzer and Adam Holland of Chilling Effects) in filing an amicus brief in Jones v. Dirty-World Entertainment Recordings, LLC, a case currently pending before the U.S. Court of Appeals for the Sixth Circuit.

The Jones case -- which will be familiar to readers of the DMLP blog -- involves defamation claims leveled at gossip website TheDirty.com and its owner, Nik Richie, arising out of user comments regarding the plaintiff's sexual behavior. The case caught the public's attention because of the salacious nature of the content at issue and Nik Richie's history of provocative behavior. In legal circles, however, the case raised eyebrows because of the federal district court judge's repeated rejection of the defendants' attempt to rely upon Section 230 of the Communications Decency Act.   read more »

Cyborg Journalists: How Google Glass Can Change Journalism

Wearable technology is creeping into society, gradually finding its way onto the street and into the gym, offices, classrooms, and more. Though not yet widely commercially available, Google Glass is at the front of this wearable device trend. The potential uses for Glass are endless, from recording simple home videos to facilitating surgeries to assisting those with physical disabilities. One particularly exciting prospect is the use of Glass by journalists, both in newsgathering and news reporting. Though it might be a stretch to say that Glass will revolutionize journalism as we know it, it certainly has the potential to enhance journalists' abilities and modernize journalism.

Ivan Lajara, a reporter for Digital First Media, was one of the first to envision the use of Glass by journalists. Lajara was invited to join the Glass Explorer program with his vision to "make journalism evolve at the pace that it needs to." As Lajara has observed from his initial months using Glass, "Google Glass can help improve journalism by enhancing live coverage, communication and engagement."   read more »

   
 
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