Earlier this morning, the lawyer, Guardian columnist and publisher of Edward Snowden’s NSA secrets, Glenn Greenwald posted this on Twitter:
Here’s @emptywheel on how DOJ’s new media guidelines could exclude all non-traditional/independent journalists: [link] Emptywheel.net is a rather well-known blog which has a very consistent, some would say a hardcore, civil libertarian viewpoint. Yesterday, July 12, its main author wrote a post regarding new guidelines (Report on Review of News Media Policies, July 12, 2013) issued by the Department of Justice regarding policies and practices on obtaining “information or records from or concerning members of the news media in criminal and civil investigations.” The report and guidelines were in response to the black eye the administration suffered when it was disclosed that Fox reporter James Rosen was named a criminal co-conspirator in the investigation of a State Department employee’s disclosure to Rosen of what the United States knew about the North Korean nuclear weapons program. I encourage everyone to read the new guidelines because they appear to be a concerted effort to insulate members of the news media from government snooping in all but “exceptional” circumstances by among other items: (1) reversing the existing presumption regarding advance notice to the news organization; (2) heightening the standards for the use of subpoenas and court orders to obtain information; and (3) establishing a news media review committee to review requests when the DOJ wants to obtain such information.
Emptywheel does not see the new guidelines as much progress by titling her response, “In Bid to Placate Legacy Media, DOJ moves Closer to Instituting Official Press.” The opening makes her view just as clear:
The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.
Her argument is that the new policies only protect the mainstream media “because all the changes in the new policy apply only to members of the news media.” Much of what is in law and policy lies in definitions. Emptywheel continutes:
They repeat over and over and over and over, “news media.” I’m not sure they once utter the word “journalist” or “reporter.” And according to DOJ’s Domestic Investigation and Operations Guide, a whole slew of journalists are not included in their definition of “news media.”
Since I consult with law enforcement agencies on writing policy, the fact the DOJ generally uses one term, “news media,” is of no moment and, in fact, is desirable for clarity purposes. What, though, to make of the DOJ’s definition of “news media?” Does it indeed exclude “a whole slew of journalists” as Emptywheel asserts? Here is what Emptywheel writes:
DIOG does include online news in its definition of media (PDF 157).
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.
But then it goes on to exclude bloggers from those included in the term “news media.”
The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).
Then it goes onto lay out what I will call the “WikiLeaks exception.”
As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.
Emptywheel argues that she, as a blogger, is not included in the definition of “news media” even though she may be disseminating information to the public as defined in the Privacy Protection Act of 1980. At what point a blogger graduates from being “just a blogger,” to a subject matter expert who disseminates information to the public and thus is protected by the guidelines is not clear and will need to be tested. That is only part of a larger point made by Emptywheel as she intimates that only the mainstream press is included in the definition of “news media.” That is the argument which Greenwald jumped on when he wrote on Twitter, “the guidelines could exclude all non-traditional independent journalists.”
Greenwald makes this assertion because Emptywheel neglected to include what it states in the DIOG definition of “news media” on page 157 directly after it notes that a national reporter with a personal blog is covered by the guidelines:
A freelance journalist may be considered to work for a news organization if the journalist has a contract with the news entity or has a history of publishing content.
Not only does the DOJ refer to “journalists” as Emptywheel said she was not “sure” if it ever did, it specifically provides for independent journalists who are either under contract with a publication or have published before. Thus it appears that people like Jeremy Scahill, who are so critical to pointing a searing light on the behavior of our governments, are protected by the new DOJ news media guidelines. Whether they go far enough to protect journalists is another question, but to have that discussion we need to at least operate from an accurate set of facts.
Update:
I originally referred to Mr. Snowden as Eric, his first name is Edward and that has been corrected in the main body. I also mistakenly assumed that the main author of Emptywheel is an attorney. She is not.
