DoJ subpoena guidelines for journalists
See: http://squid.law.cornell.edu/cgi-bin/get-cfr.cgi?TITLE=28&PART=50&SECTION=10&TYPE=TEXT They say: "(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. and "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media and "No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General
Declan, What are the qualifications one has to meet to be considered a "member of the news media"? Does one have to work for some sort of Registered news agency, or publish in a registered periodical? I am publishing this right now, but I probably don't qualify. Why not? Also: Are they going to pay for your travel and lodgings? If so, it sounds more like a great opportunity than a problem. Not that I won't enjoy hearing you bitch about it. ;-) --Sean Hastings --mailto:sean@havenco.com --vmsg/fax:1.800.why.sean
-----Original Message----- From: owner-cypherpunks@Algebra.COM [mailto:owner-cypherpunks@Algebra.COM]On Behalf Of Declan McCullagh Sent: Thursday, March 08, 2001 6:52 PM To: cypherpunks@Algebra.COM Cc: cypherpunks@cyberpass.net Subject: DoJ subpoena guidelines for journalists
See:
http://squid.law.cornell.edu/cgi-bin/get-cfr.cgi?TITLE=28&PART=50&SECTION=10 &TYPE=TEXT
They say:
"(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. and "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media and "No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General
-----Original Message----- From: owner-cypherpunks@cyberpass.net [mailto:owner-cypherpunks@cyberpass.net]On Behalf Of Sean Hastings Sent: Friday, March 09, 2001 2:27 PM To: Declan McCullagh; cypherpunks@Algebra.COM Cc: cypherpunks@cyberpass.net Subject: RE: DoJ subpoena guidelines for journalists
Declan,
What are the qualifications one has to meet to be considered a "member of the news media"? Does one have to work for some sort of Registered news agency, or publish in a registered periodical? I am publishing this right now, but I probably don't qualify. Why not?
Declan, as you may know, has had a helluva time getting Official Washington to recognize him and other online news outlets as 'real' media, worthy of the same media treatment and access to officials given to traditional print and broadcast reporters. There are no qualifications you need and, in the US and Canada, no licensing bureau or anything like that (thank god). If you want to report on something, you just show up, call yourself a reporter and see what the guy at the door says. At places like the White House, they'll want to see some proof that you work for an outlet that they recognize as 'real news'. The definition held by the White House gatekeepers is probably pretty restrictive. Go to the local stamp club exhibition, say you're a reporter, and they won't care if/when you've ever written something. They're just glad to have the interest. So bottom line: You can call yourself a reporter when you act like one. Some people think you gotta act like Sam Donaldson; others think you can act like Hunter S. Thompson. Better yet, more people think you can like Kevin Poulsen . . . David Akin / Senior technology reporter National Post / http://www.nationalpost.com 300-1450 Don Mills Road, Don Mills, Ontario CANADA / M3B 3R5 VOX: 416.383.2372 FAX: 416.383.2443 dakin@nationalpost.com / AIM: DavidAkin Click to add my contact info to your organizer: http://my.infotriever.com/DavidAkin
David's comments in his response are on-target. In this context, the only definition that seems to matter is what the DOJ believes to be a "member of the news media." In other words, if they say you're not, you likely would shoulder the burden to prove that you are. Even if they acknowledge you are a journalist, the DOJ clearly does not feel bound to follow its own regulations. -Declan On Fri, Mar 09, 2001 at 11:26:42AM -0800, Sean Hastings wrote:
Declan,
What are the qualifications one has to meet to be considered a "member of the news media"? Does one have to work for some sort of Registered news agency, or publish in a registered periodical? I am publishing this right now, but I probably don't qualify. Why not?
Also:
Are they going to pay for your travel and lodgings? If so, it sounds more like a great opportunity than a problem. Not that I won't enjoy hearing you bitch about it. ;-)
--Sean Hastings --mailto:sean@havenco.com --vmsg/fax:1.800.why.sean
-----Original Message----- From: owner-cypherpunks@Algebra.COM [mailto:owner-cypherpunks@Algebra.COM]On Behalf Of Declan McCullagh Sent: Thursday, March 08, 2001 6:52 PM To: cypherpunks@Algebra.COM Cc: cypherpunks@cyberpass.net Subject: DoJ subpoena guidelines for journalists
See:
http://squid.law.cornell.edu/cgi-bin/get-cfr.cgi?TITLE=28&PART=50&SECTION=10 &TYPE=TEXT
They say:
"(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. and "All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media and "No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General
Why should they? Such regulations are unconstitutional. There is no distinction in the 1st about owners and employees of commercial news agencies, only presses (ie persons who own mechanisms to distribute information to a community at large). On Fri, 9 Mar 2001, Declan McCullagh wrote:
David's comments in his response are on-target.
In this context, the only definition that seems to matter is what the DOJ believes to be a "member of the news media." In other words, if they say you're not, you likely would shoulder the burden to prove that you are.
Even if they acknowledge you are a journalist, the DOJ clearly does not feel bound to follow its own regulations.
____________________________________________________________________ Liberty means responsibility. That is why most men dread it. Locke The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Again, Jim is habitually confused. The regulations he believes are unconstitutional are in fact the constitutional ones (they protect journalists, although they do not go as far in their definition as some would like). The rules he should be upset about lie elsewhere int he law. -Declan On Fri, Mar 09, 2001 at 05:10:31PM -0600, Jim Choate wrote:
Why should they? Such regulations are unconstitutional. There is no distinction in the 1st about owners and employees of commercial news agencies, only presses (ie persons who own mechanisms to distribute information to a community at large).
On Fri, 9 Mar 2001, Declan McCullagh wrote:
David's comments in his response are on-target.
In this context, the only definition that seems to matter is what the DOJ believes to be a "member of the news media." In other words, if they say you're not, you likely would shoulder the burden to prove that you are.
Even if they acknowledge you are a journalist, the DOJ clearly does not feel bound to follow its own regulations.
____________________________________________________________________
Liberty means responsibility. That is why most men dread it.
Locke
The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Sat, 10 Mar 2001, Declan McCullagh wrote:
Again, Jim is habitually confused. The regulations he believes are
Really? Where is it then? Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The regulations draw a distinction that is not recognized in 'equal under the law'. A democracy (at least this one) is SUPPOSED to provide equal protection under the law. The referenced regulations don't do that. They draw a distinction based on a COMMERCIAL yardstick and that is most certainly unconstitutional. There is a reason that the Constitution doesn't mention business except in one clause - IT ISN'T IMPORTANT TO A WELL ORDERED DEMOCRACY. Some Jefferson quotes: The Press - No Government outght to be without censors; and when the press is free, no one ever will. Nature has given to man no other means of sifting out the truth either in religion, law, or politics. I think it as honorable to the government neither to know nor notice sycophants or censors as it would be indignified and criminal to pampter the former and persecute the latter. Newspapers - At a very early period in my life I determined never to put a sentence in any newspaper. I have religiously adhered to the resolution through my life and have great reason to be content with it. Were I to undertake to answer the calumnies of the newspapers it would be more than all my time and twenty aids could effect. For, while I should be answering one, twenty new ones would be invented. I have thought it better to trust to the justice of my countrymen that they would judge me by what they see of my conduct on the stage where they have placed me. 'calumnies' means slander. ____________________________________________________________________ Liberty means responsibility. That is why most men dread it. Locke The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
Even the most aggressive of news organizations roll-over, often contrary to their internal policies. It is their token defense of journalists that has led to the continued erosion of shield laws and the First Amendment. (I don't know that Declan is a member of the subpo club yet, but I'm sure the opportunity will present itself.) [IS IT PRESS?] Choate said:
He has a digital 'press' in cryptome.org just like ssz.com or pgp.net. Every one of these sites should be accorded the protection of the Constitution without question.
But all speech is not equal. In fact, there is precedent running the other direction. (Indeed, Jim, precedent runs in the other direction for most of your arguments. I don't mean this disrespectfully.) For example, media defined as "persons who gather and disseminate news on an ongoing basis as part of the organized, traditional, mass media." Matera v. Superior Court, 170 Ariz. 446, 448, 825 P.2d 971, 973 (Ct. App. 1992) (holding that professional author writing a book about the "AzScam" sting operation was not a member of the media and thus was not protected by the shield statute). First Amendment mileage in your state may vary. Nontraditional media, such as online collaborative media, might not receive the benefit of state shield statutes. Other sites might be seen as collections, rather than "media." It probably wouldn't hurt to construct a web site, both in form and content, in a fashion designed to give one the best shot at the benefit of state shield laws (where applicable) and weighty First Amendment press considerations. [CONFIDENTIAL SOURCE STATUS - Related topic] Many of you work in sensitive positions, or are otherwise close to controversy. The following are considerations for a confidential reporter-source agreement, which I thought might be of tangential interest (many reporters won't deal with "nym sources": o confidential source (not "off the record") o reporter's scope of authority/authorization to commit (maybe it's an intern) o one-time or continuing reporter-source agreement o ID disclosure to editor (and do you trust THIS GUY?) o use of attribution o use of quotes (normally, you want them to paraphrase you) o indicia of affiliation, sex, and other identifying characteristics o public disclosure of your motive/interest, agreed-upon motive/interest statement o scope of purpose and use ("deep background" only?) o timing of publication, scope of publication (good luck) o confirmation from multiple sources (lead source or primary source?) o means of contact, communication protocol (Subpoena trick: go for third party communication routes, cell phone provider, etc. to run around the journalist and the shield laws.) o handling of notes, documentation and memoranda (commingling, destruction, etc.) o limitations: you lie, a lawsuit results, criminal investigation o legal defense provisions o opportunity to confirm/review/refute (forget it) o legal recourse / liquidated damages (misc. boilerplate blah-blah) Most of the above assumes you are giving them "THE STORY OF THE CENTURY." o If you achieve the _miracle_ of confidential source status: DON'T LIE. Don't even embellish. o While there is some support for legal recourse against the reporter/newspaper, it will probably be of little consolation. o State shield laws vary. State case law varies. "It depends." The law may require disclosure. Secure legal counsel and find out, certainly in a criminal matter. o Is it a REAL investigative reporter? They know how to protect confidential sources. o The reporter must justify why you deserve this status to those on-high -- why you should be trusted. Sow your fields ahead of time. o Go with a reporter you trust (or a reporter with an reputational interest in your community - plug for Declan). I would go with some small newspapers before some major news orgs, many of which have horrific track records in this regard. It's the reporter that sits in jail for you. Ask around http://www.spj.org and http://www.ire.org . o Is there another way to get this information to the reporter with a credible, named source? I certainly don't represent myself as an expert in this area, and it's been a while since I had cause to review it. ;-) Disclaimer: "This is not legal advice because you didn't pay me for it. It's general information. It's probably ill-suited to any particular situation you might have. You always need a lawyer. Always. You should take your lawyer with you everywhere, like a pocket squirrel." -Aimee A lady will not ask for the service of your handkerchief, even if in need of a tourniquet.
On Sat, 10 Mar 2001, Aimee Farr wrote:
But all speech is not equal.
And what was your first clue? I'm speaking of the Constitution as it was intended. You're as stupid as Declan (of course this should surprise nobody since both of you are protecting the status quo). Like I've said before lawyers and reports are whores, they sell their integrity to the highest bidder. None of you believe in the Constitution, and you're so scared of it you'll take an oath to protect it and then turn around with full pre-meditation and break that oath in order to protect the status quo. Democracy and real 'equality under the law' must scare the holy shit out of you everytime the thought enters your pea-sized noggin. Both of you should see a doctor about your attention deficit. I suspect it's too late for your soul. ____________________________________________________________________ Liberty means responsibility. That is why most men dread it. Locke The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
On Sun, Mar 11, 2001 at 07:45:44AM -0600, Jim Choate wrote:
And what was your first clue? I'm speaking of the Constitution as it was intended. You're as stupid as Declan (of course this should surprise nobody since both of you are protecting the status quo). Like I've said
Aimee, that's high praise, you know. :) I believe that as a matter of principle, there is no difference between what I do in my articles and what John Young does on cryptome.org. Both of us *should* be treated by the law as professional journalists. However, I also recognize that the law will likely not see things that way, at least not yet. -Declan
Declan wrote:
I believe that as a matter of principle, there is no difference between what I do in my articles and what John Young does on cryptome.org. Both of us *should* be treated by the law as professional journalists.
Hmm. Oddly enough, I agree with that. And yet, I doubt we are thinking of the same thing. Because I ALSO agree with the Usual Suspect in a way -- I don't think professional journalists should be "treated by the law" any differently than the rest of us mere sheeple. If this makes any sense, I'm not saying professional journalists shouldn't get special breaks, I'm saying we should ALL get 'em and they shouldn't be special. If freedom of the press is to have any meaning, we can't have a gatekeeper empowered to say "you are legitimate press and you, scoundrel, yes you, the guy with the wireless Palm Pilot, you don't count!" Of course, since we live in an age where the rule of law is a fast-fading memory, it doesn't matter very much. As Declan is discovering, the usual protocols are not observed when the government is conducting show trials of the randomly selected politically incorrect loser of the month. -- Daniel ======================================================= The Law Office of Daniel J. Boone 326 Fourth Avenue, Suite B Juneau, Alaska 99801 (907) 723-9902 djb@gci.net ======================================================= "No man's life, liberty, or property is safe when the legislature is in session." -- Judge Gideon Tucker =======================================================
At 11:01 AM 3/12/01 -0500, Declan McCullagh wrote:
I believe that as a matter of principle, there is no difference between what I do in my articles and what John Young does on cryptome.org. Both of us *should* be treated by the law as professional journalists.
However, I also recognize that the law will likely not see things that way, at least not yet.
That's not really the problem ---his site, by now, is well known, so he can appeal to numbers. The question is what about the rest of us ---who may put up a single-issue site with far fewer visitors? Where, and why, do you set the threshold?
On Sat, 10 Mar 2001, Aimee Farr wrote:
But all speech is not equal.
"Congress shall make NO law ..." Clearly Congress isn't following it's own Constitutional directive.
In fact, there is precedent running the other direction.
Thank you for conceeding my 'unconstitutional' point. (Indeed, Jim, precedent runs in the other direction for most of
your arguments. I don't mean this disrespectfully.)
For example, media 'is (sic)' defined as "persons who gather and disseminate news on an ongoing basis as part of the organized, traditional, mass media."
Why is it that a STOP sign is clearly understood but 'make no law' isn't? What is the thinking that the government has the authority to break the law but nobody else does? How can a government which doesn't recognize or respect its own laws be a honest government? If the government isn't honest why should it expect anyone to conform?
First Amendment mileage in your state may vary.
Actually not, it will be ignored at any and every opportunity. Pretty reliable mileage in my book.
Nontraditional media, such as online collaborative media, might not receive the benefit of state shield statutes.
Which is clearly against 'equal protection' and 'make no law ...'. [ a bunch of prima facia evidence the US Government is acting extra-Constitutionaly.] Yep, clearly the best way to protect democracy is to ignore it. ____________________________________________________________________ Liberty means responsibility. That is why most men dread it. Locke The Armadillo Group ,::////;::-. James Choate Austin, Tx /:'///// ``::>/|/ ravage@ssz.com www.ssz.com .', |||| `/( e\ 512-451-7087 -====~~mm-'`-```-mm --'- --------------------------------------------------------------------
participants (7)
-
Aimee Farr -
Daniel J. Boone -
David Akin -
David Honig -
Declan McCullagh -
Jim Choate -
Sean Hastings