DOJ Doesn’t Think Bloggers Are Media Either–and It May Use NSLs to Get Media Call Records

A number of bloggers are pointing, with concern, to an Oregon case in which a blogger got hit with a $2.5 million defamation judgement.

Oregon law provides special legal protections against defamation lawsuits to journalists associated with traditional media outlets. Such publications are immune from defamation suits unless the defamed individual first requests a retraction. Journalists at recognized media outlets are also protected from revealing confidential sources. Cox argued that she was eligible for protection under both provisions and asked the judge to set aside the verdict.

But Judge Marco Hernandez disagreed. “Although defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system,” the judge wrote. “Thus, she is not entitled to the protections of the [Oregon journalist shield] law.”

That result was apparently dictated by the text of the Oregon shield statute, which singles out those specific media technologies for legal protection.

But as Kashmir Hill notes, even aside from the outdated terms of Oregon’s law, the woman in question had set up a series of websites pretty much designed to hurt the reputation (and especially the Google searches) of the firm in question, and then sent an email asking for $2,500 a month for “reputation management” services to undo her work.

The Oregon case, in other words, is more complicated than it has been portrayed.

DOJ Doesn’t Consider Many Bloggers News Media

But while we’re talking about whether bloggers are protected under media guidelines, we probably ought to be looking at DOJ’s recently changed Domestic Investigation and Operations Guide, which also don’t consider bloggers to be protected as media (I wrote about these changes here, but the guidelines themselves have been released, in heavily redacted form). Unlike Oregon, 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 new 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.

The definition does warn that if there is any doubt, the person should be treated as media. Nevertheless, the definition seems to exclude a whole bunch of people (including, probably, me), who are engaged in journalism.

DOJ Has Made It Easier To Investigate Journalists’ Contacts

Though to some degree, it doesn’t matter, because the new DIOG treats the media so poorly in any case. It considers investigations sensitive (and therefore requiring special approvals) only if the member of the news media (or religious or political organization, or academic institution) is the subject of the investigation, not if they are a witness, as media almost always will be in leak investigations.

Just as troubling, the new DIOG seems to make it a lot easier to get news media contact records in national security investigations. A heavily-redacted section (PDF 166) suggests that in investigations with a national security nexus (so international terrorism or espionage, as many leak cases have been treated) DOJ need not comply with existing restrictions requiring Attorney General approval before getting the phone records of a journalist. The reason? Because NSLs aren’t subpoenas, and that restriction only applies to subpoenas.

Department of Justice policy with regard to the issuances of subpoenas for telephone toll records of members of the news media is found at 28 C.F.R. § 50.10. The regulation concerns only grand jury subpoenas, not National Security Letters (NSLs) or administrative subpoenas. (The regulation requires Attorney General approval prior to the issuance of a grand jury subpoena for telephone toll records of a member of the news media, and when such a subpoena is issued, notice must be given to the news media either before or soon after such records are obtained.) The following approval requirements and specific procedures apply for the issuance of an NSL for telephone toll records of members of the news media or news organizations. [my emphasis]

So DOJ can use NSLs–with no court oversight–to get journalists’ call (and email) records rather than actually getting a subpoena.

The section includes four different approval requirement scenarios for issuing such NSLs, almost all of which are redacted. Though one only partly redacted passage makes it clear there are some circumstances where the approval process is the same as for anyone else DOJ wants to get an NSL on:

If the NSL is seeking telephone toll records of an individual who is a member of the news media or news organization [2 lines redacted] there are no additional approval requirements other than those set out in DIOG Section [half line redacted]

And the section on NSL use (see PDF 100) makes it clear that a long list of people can approve such NSLs:

  • Deputy Director
  • Executive Assistant Director
  • Associate EAD for the National Security Branch
  • Assistant Directors and all DADs for CT/CD/Cyber
  • General Counsel
  • Deputy General Counsel for the National Security Law Branch
  • Assistant Directors in Charge in NY, Washington Field Office, and LA
  • All Special Agents in Charge

In other words, while DOJ does seem to offer members of the news media–which is itself a somewhat limited group–some protection from subpoena, it also seems to include loopholes for precisely the kinds of cases, like leaks, where source protection is so important.

The Oregon case is important because it reminds us how little protection is accorded those of us working on line. But it’s probably not the biggest threat to bloggers, or even other online media professionals.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

15 replies
  1. MadDog says:

    Shorter DIOG: “Since getting judical approval of subpoenas is a PITA, don’t bother. Use an NSL, approve it yourself, and there you go.”

  2. Jeff Kaye says:

    Chilling stuff. And if is where they are now, where will be five years more down the line, as the push towards a totalitarian state edges ever closer.

    If anyone didn’t see, btw, Jason Leopold’s review of Andrew Kolin’s new book, “State Power and Democracy: Before and During The Presidency of George W. Bush.” (click here to read an excerpt), it’s worth a look (as is the book, of course).

    Kolin is Professor of Political Science at Hilbert College in upstate New York.

    Kolin in the TO article:

    “Democrats march in lockstep with their Republican counterparts,” Kolin said. “We saw that during the Bush administration and we’re seeing it again when it comes to economic and national security issues under Obama. I don’t see much difference between the two parties. I really don’t. Obama has proven to be just like his predecessors. He’s interested in the powers he inherited from Bush and the new powers he acquired. And he continues to fulfill the wishes of Wall Street and the financial backers who bankrolled his election.”

  3. dustbunny44 says:

    But will this case be to bloggerdom what “Santa Clara County vs. Southern Pacific Railroad” was to corporate personhood, that defines a journalist as someone who publishes in a reputable outlet (whatever those are)?
    That’s just wrong, and we can’t let them get away with it.

  4. EH says:

    This tells me that bloggers have power in the future. The DOJ is running scared from the Internet with these statements.

  5. bmaz says:

    Meh, I looked through this; I am pretty sure Emptywheel is covered as media. The real problem, as you note, is that doesn’t necessarily mean a hell of a lot in a lot of circumstances.

  6. jerryy says:

    I think the point being raised by many bloggers, that the judiciary (and DOJ) are defining and limiting what bloggers are and are not is tremendously ‘chilling’.

    “If, to expose the fraud and imposition of monarchy … to promote universal peace, civilization, and commerce, and to break the chains of political superstition, and raise degraded man to his proper rank; if these things be libellous … let the name of libeller be engraved on my tomb” Thomas Paine, 1792. (noted blogger of his day, his work Common Sense which credited by President Adams as “Without the pen of the author of ‘Common Sense,’ the sword of Washington would have been raised in vain” was if you recall signed “Written by an Englishman”.)

    On to an OT question: Has the DOD yet tied together the keystroke logger that was found a short while back on the drone fleet to the downing of the drone taking in the Iranian scenery? I mention the queston this way ‘cuz to the non-technical reader, a while back when that issue was being discussed I commented that keystroke loggers are used to reverse engineer how systems work. If ‘they’ justed wanted passwords to the drones, ‘they’ would have been running a packet sniffer tool (a legit and necesary IT tool) — passwords, even high admin passwords are limited in what they give you, yes you get into the system but then what? Think of an experienced Windoze programmer getting admin passwords to Sear’s system. It runs in COBOL, which means all of those skills are well, lacking in getting much useful info off of the system. Having passwords and the means to analyze the system from working examples is priceless — a first year CS student can then do lots and lots….

  7. Bustednuckles says:

    I have a question.

    How would they decide your fate, if like you, MT, had ever been linked to or quoted by a major news source, such as the NYT or the likes?

    I would like to think that would give you a certain credibility as a journalist.
    They want you to have some kind of license (fee)?

    I know I have seen you on television more than once, IE the Plame case and the notorious Blowjob interview.
    ( you are still my personal hero for that one).

    Can an individual blogger claim professional status under their definition?

    I was once linked to at the very bottom of the page with no comment by the Wall Street Journal, does that qualify?

    If ya feel like replying to my query, I am going to be busier than a one legged paper hanger in a hurricane here the next few days and if you have the inclination, I would greatly appreciate your thoughts in an email to Bustednuckles AT Gmail Dot Com.

    Love ya honey, you have guts.

    Happy Holidays from the new Busted family.

  8. emptywheel says:

    @burnt: Oh, Shuster ALWAYS thought I was a journalist. Kept asking me after the trial how I got it right (in the book) when no one else had.

    Tamron Hall? That’s another issue.

  9. emptywheel says:

    @burnt: You know, since you mention it, the way they’ve defined journalist here WOULD cover Timmeh Russert’s famous conversation with Libby, in which he protected the contents of a conversation about a customer complaint.

  10. P J Evans says:

    Having read more about this over at the Great Orange Satan, she does not, in fact, seem to have been practicing journalism, but rather was trying to damage his reputation by setting up multiple websites, all attacking him and his company. And writing to him saying ‘pay me $X per month and I’ll go away’. (The monetary amount will probably be negotiated down later, but that won’t be Big News.)

  11. greengiant says:

    Think you had better be submitting your writings to the library of Congress via tweet or better yet printed media, just to get some standing as valid US press.

    Another web site has been shut down and cleansed from the web in its entirety for about 8 weeks due to a libel lawsuit filed in Vancouver, British Columbia over content that occurred in a small fraction of the postings.

    Once the fascists figure out how to purge the blogs from the web, it will be all gone in days.

    Most google able comments are from the very people deep-captured successfully snarked in the past, or their allies and sock puppets.
    So here is just he lawsuit itself.

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