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.
And in that regard, we've been very active in pending court cases this year. With the invaluable cooperation of our friends at the Harvard Law School Cyberlaw Clinic, we have filed briefs in the U.S. Courts of Appeals for the Third and Sixth Circuits (among others) on a range of issues affecting the gathering and publication of information online:
- In Seaton v. TripAdvisor, LLC, the DMLP urged the Sixth Circuit to affirm a district court's finding that a "dirtiest hotels" list published by consumer review website TripAdvisor was protected opinion under the First Amendment and Tennessee defamation law. The DMLP argued that a decision adverse to TripAdvisor would chill reliance on crowdsourced data for research purposes, and that the use of crowdsourcing to collect data has become common in both data-based journalism and academic research. On August 28, 2013, the Sixth Circuit issued a decision affirming the district court's dismissal of the case.
- In United States v. Auernheimer, the DMLP asked the Third Circuit to apply First Amendment scrutiny to the escalation of punishment under the federal Computer Fraud and Abuse Act from a misdemeanor to a felony based upon the defendant's sharing of information on matters of public concern with the press. The DMLP argued that Supreme Court precedent prevents punishment for the disclosure of true, newsworthy information, and that courts considering the disclosure of illegally obtained information have been careful to distinguish between punishment for the unlawful access and punishment for harms caused due to publication of the information obtained.
- The DMLP returned to the Sixth Circuit in Jones v. Dirty-World Entertainment Recordings, LLC, this time teaming up with the ACLU and EFF to warn the court about the consequences of limiting the protection of Section 230 of the Communications Decency Act in cases where an online intermediary encourages its users to post potentially offensive material. While such a rule might limit distasteful content on the Internet, it could also seriously impair the use of the Internet to gather important information that is available in no other way, such as reports of consumer fraud, child abuse, price gouging, et cetera.
- In cooperation with Free Press, the National Press Photographers Association, Journalist's Resource, the Investigative News Network, and the Nieman Journalism Lab, the DMLP launched a nationwide survey of institutional and independent journalists to gather information about their experiences in obtaining media credentials. The study, which asked about journalists' interactions with federal, state, and private organizations, was designed to develop a nationwide overview of credentialing practices over the last five years. With approximately 800 completed responses, we are now in the process of analyzing the data for a public report in 2014. It is our hope that the data will be used as a platform for further study, and for developing measures to improve conditions for journalism as a whole.
- The DMLP is hard at work on a guide for journalists on data security, layering technology and law to give journalists a full understanding of how they can best protect journalism work product and the identities of sources from unwanted disclosure. We have teamed up the Cyberlaw Clinic and with technologists and privacy experts at the Berkman Center to provide journalists with information on how to develop their own privacy risk assessments, the scope and limits of legal protection, and where to find computer security tools and protocols that can allow journalists to protect their information from both lawful and unlawful actors. Building upon existing computer security guides for the press and human rights workers, we plan to present a unique combination of technical and legal information, so that journalists can have the greatest understanding on how both of these tools work together to protect work product and source identities.
- We remain concerned about the future of nonprofit journalism organizations in the United States, although it now seems that the IRS logjam of applications for tax exemptions has broken up. In order to clear up the myths and misconceptions around this process, we are working with the Knight Foundation to develop a video resource about the IRS and journalists. We are also gathering materials from nonprofits that have successfully obtained their tax exemptions, so that the lessons they have learned can be passed on to others and used by future applicants as a basis for consultation with their attorneys.
The DMLP has also continued its tradition of consulting with outside organizations in the Boston/Cambridge area that are engaged with challenging First Amendment and Internet law questions. Earlier in the year we worked with NPR member station WBUR on "Bad Chemistry," an amazing interactive report on the Massachusetts drug lab crisis. This fall, we were invited to participate in the Massachusetts Supreme Judicial Court's Online Publication Working Group, a panel of Massachusetts attorneys convened by the Court to analyze issues relating to the publication of attorney discipline reports online. We were also pleased to help celebrate 25 years of Cambridge Community Television by appearing with the Harvard Law School Cyberlaw Clinic at CCTV's anniversary event, "Filling the News Gap in Cambridge and Beyond: Citizen Journalism and Grass Roots Media." [Ed. note: video of the DMLP/Clinic session is available through the link.] In connection with that event, the DMLP and the Clinic released Newsgathering in Massachusetts, a guide to the rights of independent and institutional journalists to collect information in Massachusetts.
Speaking of speaking, we've been deeply engaged in education and outreach this year. Back in the spring, Andy and I had a great time teaching Internet & Society: Technology and Politics of Control, a Harvard Extension School course that's been taught by folks in and around the Berkman Center as far back as 1997. (I'm stepping back from the class next year to focus on the ongoing evolution of the DMLP, but Andy will be continuing the class and it's shaping up to be a great one -- so register while you have the chance.) We have also taught individual classes as guest lecturers, appeared on conference panels, and given keynotes across the country from San Francisco to Atlanta. The DMLP even made some international appearances this year, taking long plane flights to Rijeka, London and New Delhi to talk to journalists and lawyers about our resources and how our experiences might inform similar efforts in other countries. We'd like to thank all of the organizations that hosted us on our travels; we hope it was as informative for you as it was enjoyable for us.
Back home, our legal referral service for online journalism and publishing ventures, the Online Media Legal Network, has been as busy as ever - and we're thrilled to announce that this fall we saw our 500th client matter placed through the network! We're using that milestone as an opportunity to look at the evolution of our clients and their needs over the four years since the network launched, a stretch of time that has seen fundamental disruption and stunning innovation in the journalism space; we look forward to publishing a report early next year. Of course, we would not have reached this point without the tireless dedication of the attorneys in our network, and we are deeply grateful for all of their efforts on behalf of OMLN clients. On that note, I would like to recognize two people in particular who are retiring this year, and who have been exceptional partners in serving the legal needs of online journalists: Dorothy Stallworth, pro bono manager for Troutman Sanders LLP, and Debbie Segal, pro bono partner at Kilpatrick Townsend & Stockton LLP. All of us at the DMLP wish you the very best!
With so much in progress, it feels a bit odd to treat 2013 as all wrapped up - so I'll just tie a bow on it here and leave it as a present to be opened in 2014 (sorry, couldn't resist). Trust me, there are a lot of great things to come across all of our initiatives. Until next year, I'll sign off with my personal thanks to all of our supporters, colleagues, partners, contributors, clients, and readers who make the Digital Media Law Project such a fantastic place to work.
We wish you all a very happy holiday season, and will see you again in 2014!
Jeff Hermes is the Director of the Digital Media Law Project. He will be spending the winter recess plotting future adventures for the DMLP, and catching up on watching Doctor Who. 50 years and 800 episodes, folks.