Justice Dept.'s Media Investigation Policy Falls Flat Compared to Other Protections Against Press Intrusion

As has been widely reported, the U.S. Department of Justice has disclosed that it has obtained two months' worth of telephone records from 20 separate phone lines assigned to the journalists and offices of the Associated Press. The Associated Press was not informed of the investigation before the DOJ acquired the telephone data, which could potentially reveal confidential sources and editorial strategy (among other sensitive information).

The incident has resulted in widespread condemnation of the DOJ's actions by the press and demands for accountability and reform. In response, the DOJ has asserted its commitment to abiding by applicable law and its internal policies, which require special consideration before information may be sought from members of the news media.

This is not the first time that a government investigation into a news organization's operations has led to questions about the sufficiency of protection for the press, and in fact the effects of one prior incident in particular can be seen in these recent events. Examining this incident and its consequences provides a useful lens through which to examine the breadth and limitations of government power to investigate the press.

The First Amendment and the Fourth: Zurcher v. Stanford Daily   read more »

3D Printed Guns and the First Amendment

Several news organizations are reporting today that the U.S. Government, through the Department of State, through the Directorate of Defense Trade Controls (DDTC), sent a letter to the organization Defense Distributed, requesting the immediate removal of several "data files" (in their words) off of their DEFCAD website that they claim violate federal law, including the plans for the "Liberator" 3D-printed handgun. The letter was phrased in the manner of a request, but one can be sure that sanctions would follow should Defense Distributed simply ignore the letter. (The Atlantic Wire was kind enough to post the letter in question, available for download here.) Defense Distributed has complied and removed the files from their website, but has indicated that they will "appeal." In this case, that appears to mean requesting a formal determination from the DDTC as to the status of the files in question, which could provide the basis for further legal review.   read more »

"Newsgathering in Massachusetts" Guide Now Available Online!

The Digital Media Law Project is pleased to announce the online release of its new legal resource, Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.  

Our new guide is a PDF document formatted for booklet printing, and provides background legal information on the rights of independent and institutional journalists to collect information in Massachusetts.  It covers core topics in Massachusetts newsgathering law, including: open meetings and public records laws; access to courts and courtrooms; recording courtroom proceedings; recording the activities of public officials in public spaces; and protection for anonymous sources.

Written by Cyberlaw Clinic and DMLP staff, Newsgathering in Massachusetts was developed for "Filling the News Gap in Cambridge and Beyond: Citizen Journalism and Grass Roots Media," an event on May 4, 2013, celebrating of the 25th anniversary of Cambridge Community Television. We are now pleased to make this guide available to the public, and hope that you find it useful!

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When Comments Turn Ugly: Newspaper Websites and Anonymous Speech

Dan Kennedy has reported on an interesting anonymous speech issue brewing (or perhaps already boiled over) in the town of Cohasset, Massachusetts. It seems that the board of selectpeople of Cohasset has been concerned recently about ad hominem attacks on their members, delivered through the medium of the comment sections of the websites of the Quincy Patriot Ledger and the Cohasset Mariner. The board has debated issuing a subpoena through the Town Counsel to identify the commenters, allegedly to determine whether the comments were being posted from computers owned by the own in violation of Cohasset's computer usage policy.   read more »

The DMLP Joins EFF in an Amicus Brief Addressing DMCA Misrepresentations and Critical Speech

Earlier today the Digital Media Law Project, through our counsel at the Harvard Law School Cyberlaw Clinic, joined a brief filed by the Electronic Frontier Foundation in the United States District Court for the District of Massachusetts case Tuteur v. Crosley-Corcoran. The case concerns the Digital Millennium Copyright Act's "notice and takedown" procedures, and whether a party who sends a takedown request knowing that the target of the takedown has a valid fair use defense can be liable for such a misrepresentation. (You can read EFF's post about the filing here and download our brief here.)

As regular readers of our blog are aware, the DMCA, by immunizing online service providers from liability, incentivizes these services to implement a system whereby owners of content who discover copyright infringement by a service's users can file a notice with the service. The service will then expeditiously remove the allegedly infringing content and notify the user of the removal. The material will stay offline unless the website user files a counter notification stating that the user believes the material was incorrectly removed. After that point, the service provider has a window of no earlier than 10 and no later than 14 business days to restore the content.   read more »

Misidentifications Past and Present: Terror, Suspicion & the Media

The DMLP blog has been on an unplanned break for a while as a result of the Boston Marathon bombings and subsequent manhunt. Like many in the Boston-Cambridge-Watertown area, we have had our past two weeks disrupted both with our personal attempts to come to terms with this senseless act of violence and by last Friday's "shelter-in-place" request by law enforcement.

There has been outstanding coverage and analysis of these events already by both mainstream and independent media, but one particular aspect which has stood out for many commentators was the role played by social media. For many in the Boston area, platforms such as Twitter and Reddit became a key way for the community to share its experiences and reactions, anger, fear, and prayers. Last Friday in the Watertown area, social media took on another aspect as the way in which many of us who sat locked in our houses reached out to one another for news and support.

However, there was also controversy around social media, in particular concerns about "witch hunts" among social media users while the suspects were still unknown. While these problems were not limited to social media platforms, there has been significant commentary about how social media either helped or hindered law enforcement efforts and public understanding in a crisis situation.   read more »

Digital First Sale: A U.S. District Court Tackles Used MP3 Sales

As many of us clear out our CD collections and move to digital music, more and more used CDs are making their way to garage sales, used music stores, eBay, Goodwill, and more. We don't worry about being sued for copyright infringement, because the first sale doctrine protects this resale. Should the sale of used mp3s be treated any differently? In other words, should the medium matter?   read more »

DMLP Co-Organizing an Event on Grassroots Media in Cambridge

As regular readers know, the DMLP spends its days analyzing the legal state of online journalism across the country and out into the rest of the world. Posts on this site address social media service of process in Texas, lèse majesté laws in France, FTC regulation of social media across the United States, defamation analysis for bloggers in Iowa, Florida laws on mugshot websites... and that's just the past couple of months! Every once in a while we here like to take an opportunity to bring our research back to our hometown, and look at all of these big picture media law issues as they apply to coverage of issues where we work and live.    read more »

Social Media Goes Legit

There have several recent developments which mark a milestone in the evolution of social media platforms: their acceptance as mainstream forms of communication, on equal footing with older forms of communicating official or "important" messages.

In late February, a bill was introduced in the Texas legislature (H.B. No. 1989) which would allow service of process -- sending initial notice of a lawsuit to the defendant -- via a message sent through a social media site.

This is a new innovation in the United States, with only a few cases like Rio Props. v. Rio Int'l Interlink, 284 F.3d 1007 (9th Cir. 2002) (approving service via e-mail as a secondary method) and Mpafe v. Mpafe (Minn. Dist. Ct. May 10, 2011) (allowing service online, via social media websites and e-mail). Last year a federal judge in New York denied a request to serve notice via Facebook, since it was unclear whether the account to which the message was to be sent actually belonged to or was accessed by the defendant. Fortunato v. Chase BankUSA, No. 1:11-cv-06608-JFK (S.D.N.Y. June 7, 2012). [Ed. note -- For more background on electronic service of process, see our blog post here.]   read more »

France Soon to Say "Get Lost" to its Criminal Offense to the President Law

The Legal Committee of France's Chamber of Representatives voted unanimously on March 27 to propose to repeal the offense of insulting the President of the Republic, which is still a crime under article 26 of the French Press law. French Representatives will now vote on April 18 to adopt the proposal to repeal article 26, then will send the proposal to the Senate.

I wrote earlier about that odd remnant in French law of the Ancien Régime belief that the Head of State must not be insulted, and talked about the judicial saga of Hervé Eon, a French citizen, arrested and fined in August 2008 for having held a placard which read "casse toi pauvre con" ("get lost you a$$...") on the side of a road where Nicolas Sarkozy, then President of France, was scheduled to pass by.   read more »

Judge: Blogging from the Courtroom OK, Twitter Not So Much

As Bob Ambrogi reports, on February 19, 2013, Massachusetts Superior Court Justice Peter Lauriat held a hearing in the case of Commonwealth v. Fujita, a first-degree murder case going to trial in Middlesex County, Massachusetts. The purpose of the hearing was to give representatives of the media an opportunity to voice their objections to Judge Lauriat’s limitations on reporting on the trial. The judge had previously approved a panoply of reporting and recording techniques in the courtroom itself, including a video feed, a still camera, blogging, and (in the judge’s words) the “pencil press.” However, he prohibited the use of Twitter or other social media “other than the blogosphere” to transmit live updates during the trial from the courtroom or anywhere else within the courthouse.

So, the natural question is, what’s the difference? What exactly is the “blogosphere” in Judge Lauriat’s mind, and why does he draw the line at Twitter and whatever other social media tools are not within that sphere?

The Court Rule at Issue

For context, it is necessary to take a closer look at Massachusetts Supreme Judicial Court Rule 1:19, the court rule that governs use of cameras and electronic devices in Massachusetts courtrooms. Section (2) of the rule states:   read more »

Creative Lawyering or Copyright "Trolling" - a Copyright Society Event at Suffolk Law

This Thursday I'll be joining Jason Sweet from the Cambridge law firm (and OMLN member firm) Booth Sweet LLP at an event hosted by the New England chapter of the Copyright Society of the USA entitled "Creative Lawyering or Copyright 'Trolling.'" The event will be a discussion of some recent attempts by law firms and rightsholders to use enforcement of copyright law as a direct revenue source – attempts like the now-dying (but, critically, not quite dead) Righthaven LLC that sued bloggers for copying news articles, and the currently-unraveling saga around Prenda Law. Jason will be talking a bit about his litigation work defending against these groups, and I'll be talking a bit about the Righthaven case specifically and what concerns these practices should raise amongst the copyright bar.

The event is at Suffolk Law School,  120 Tremont Street, Room 295, right in the heart of downtown Boston. The event is co-sponsored with Suffolk's IP Law Student Association, School Committee of the MA Chapter of the Federal Bar Association, and their IP and Entrepreneurship Clinic. The event is free and open to all. Further details can be found on the CSUSA website. Hope to see you there!

Andy Sellars is a staff attorney at the DMLP.

FTC Clarifies Obligations of Product Reviewers, But Does Not Ease Concerns

On March 12, 2013, the Federal Trade Commission released a new guidance paper entitled ".com Disclosures: How to Make Effective Disclosures in Digital Advertising." The new FTC guidance updates a prior FTC release from 2000 relating to disclosures in online advertising. The new guidance also provides some answers to questions raised by the agency's 2009 Guides Concerning the Use of Endorsements and Testimonials in Advertising, which caused substantial concern among bloggers and users of social media who write product reviews due to a lack of clarity as to their obligations.

Scope of the New FTC Guidance

The FTC has long taken the position that some online advertisements can be deceptive when not accompanied by certain clarifying disclosures. Such disclosures might relate to pricing, product materials or ingredients, or any of a number of other issues -- including identification of sponsored endorsements, as discussed in the 2009 endorsement guidelines. The agency's position on effective online disclosures is straightforward:

The ultimate test is not the size of the font or the location of the disclosure, although they are important considerations; the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.   read more »

DMLP at UC Hastings on March 22, Discussing the Computer Fraud and Abuse Act

On March 22nd I'll be at UC Hastings in San Francisco for an all-day symposium entitled The Computer Fraud and Abuse Act: Transformation after Tragedy. The event is meant to serve as a critical examination of the Act (18 U.S.C. § 1030) in light of the prosecution of Aaron Swartz, which ultimately lead to his tragic suicide two months ago.

Building upon my earlier writing on the topic I will be moderating a panel on the Swartz case specifically, along with panelists Prof. Rory Little from Hastings, Cathy Gellis from Digital Age Rights, and Trevor Timm from the Electronic Frontier Foundation.   read more »

On a Very Long Walk, Paul Salopek Sees a Ray of Light from the IRS

Pulitzer Prize-winning journalist Paul Salopek is currently on a long walk...a walk across continents that is expected to take approximately seven years to complete. An extraordinary experiment in what Paul calls "slow journalism," the Out of Eden Walk will see Paul -- on foot at a rate of three miles per hour -- trace humanity's 60,000 year expansion out of Africa, through the Middle East and Asia, and down the length of North and South America. Dispatches from along the way will illustrate the cross-section of the human race that Paul encounters along his way, part of an innovative storytelling platform designed to explore who we are as a species, where we came from, and the journey that we are still on.

Clearly, for such a monumental project Paul requires an extensive support system, including representatives here in the United States who can coordinate the venture during the extended periods when Paul himself is out of ready contact. The form that the Out of Eden Walk has selected is a nonprofit organization that can operate as a legal entity in the United States. In November 2012, that entity applied for tax exempt status from the IRS, a critical step for securing the funding necessary to support the project.   read more »

Texas Bill Would Allow Publishers to Correct or Retract Content to Avoid Damages

Texas State Representative Todd Hunter, R-Corpus Christi, has proposed a "retraction statute" that, if passed, will protect journalists both online and offline and promote truth and efficiency both in and out of court.

The Freedom of Information Foundation of Texas and the Texas Press Association assisted Hunter in drafting Texas House Bill 1759 (HB 1759), which would require a prospective plaintiff to give a publisher an opportunity to correct, clarify, or withdraw false content before filing a defamation lawsuit. Under the proposed law, a request for such a correction must be made within a year of the publication and within 90 days of the plaintiff becoming aware of the publication. If the request is granted, and a correction, clarification, or retraction is published "with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of," the plaintiff cannot be awarded punitive damages in a defamation suit.

A publisher who has been asked to make a correction may also ask the person making the request to provide "reasonably available information regarding the falsity of the allegedly defamatory statement." The requestor "must" provide the information within 30 days or be barred from seeking punitive damages in court.   read more »

DMLP UPDATE: The DMLP Asks the Sixth Circuit to Safeguard Crowdsourced Research and Data-based Journalism

The Digital Media Law Project (formerly the Citizen Media Law Project), assisted by Harvard Law School’s Cyberlaw Clinic, has asked the Sixth Circuit to make clear that website operators that aggregate citizen reports and rely on that data to draw conclusions cannot be liable for defamation based on those conclusions.

The DMLP submitted an amicus curiae brief (pdf) last week to the Sixth Circuit in the case of Seaton v. TripAdvisor, LLC. The case concerns TripAdvisor’s 2011 “Dirtiest Hotels in America” list. The list, which was based on travelers’ ratings for cleanliness on TripAdvisor, named the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee the dirtiest hotel in America. Kenneth Seaton, the hotel’s owner, subsequently filed a claim for defamation and false light. The U.S. District Court for the Eastern District of Tennessee granted TripAdvisor’s motion to dismiss the claim, holding that the statements at issue were purely subjective opinion and unverifiable rhetorical hyperbole. Seaton appealed the dismissal of his defamation claim to the Sixth Circuit.   read more »

We are the Digital Media Law Project

Many of you who have followed the adventures of the Citizen Media Law Project know that we have been contemplating a change of our project's name for quite some time (the eagle-eyed will have seen our new name and logo appearing in stealth fashion here and there on our site and elsewhere). The change from "Citizen" to "Digital" is a profound one for us, reflecting an ongoing discussion within our project (now and hereafter the "DMLP") about the nature of the online journalism and publishing ecosystem and our role in supporting those involved in it.

When our project started in 2007, the disruptive effects of the Internet on the journalism industry were in full swing, while at the same time individuals were realizing the potential of blogs, social media, and other open online platforms to change how we share information of public importance. The ability of individuals to participate directly in meeting the information needs of their communities marked a critical shift in how we communicate on public issues. However, many of those exploring the possibilities of citizen journalism did so with little understanding of the legal risks that they might face, risks that traditional journalism organizations had long understood and for which they had developed extensive risk management strategies.   read more »


Iowa Retains Media/Non-Media Distinction, Leaving Bloggers Vulnerable

I've already written several posts about the overblown predictions that a ruling involving an Oregon blogger (now on appeal) would have dire consequences for bloggers in that state. But a recent decision by Iowa's Supreme Court on who can be considered "news media" under Iowa law may truly endanger bloggers and other online contributors in the Hawkeye State.

The issue is that the Iowa Supreme Court decided to maintain the distinction in Iowa state law between "media" and "non-media" defendants, with the latter being easier to sue for some types of libel.

Bierman v. Weier, No. 10–1503, 2013 WL 203611 (Iowa Jan. 18, 2013) is a libel suit based on Scott Weier's memior, Mind, Body and Soul, which focuses on Weier's personal transformation after his divorce from plaintiff Beth Weier. In the book Scott Weier alleged that Beth suffered from mental illness because her father, plaintiff Gail Bierman, had molested her as a child.

Scott Weier paid vanity publisher Author Solutions, Inc. $3,183.81 to design and print 250 copies of the book. He distributed between 20 to 30 copies to friends, family, and local businesses. In addition, three copies were sold through Author Solutions' website, and one sold through The rest of the books are in storage.   read more »

Florida Bill Targets “Mugshot Websites,” Hits Crime Reporting

A new bill proposed by Florida legislator Carl Zimmermann seeks to end “mugshot websites,” a relatively new industry that exploits the marriage of the internet and open records laws in order to make a profit. (See our prior posts on mugshot websites here, here, and here.) But, while ending these sites may be a morally laudable goal, the proposed law is blatantly unconstitutional. Not only would it infringe upon the protected speech of these mugshot websites, it would also stifle a substantial amount of socially beneficial online speech, specifically crime reporting from legitimate news sources.

The proposed law, House Bill (HB) 677, would require “the operator of a website that contains the name and personal information, including any photograph or digital image,” of a person charged with a crime, within 15 days of receiving written notification that the person has been “acquitted or the charges are dropped or otherwise resolved without a conviction,” to remove the person’s name and personal information. Failure to comply would lead to a fine and, after 45 days, “create[] a presumption of defamation of character.” Under HB 677, a website operator may not ask for payment to remove content, but the bill would penalize websites regardless of whether they charged a fee—it targets content, not commercialization.   read more »

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