Mike Rogers Aims to Criminalize One of the Main Things that Affords Journalists Protections: Getting Paid

Remember DOJ’s efforts to placate journalists (rather stunningly, in retrospect, rolled out a month after the first Edward Snowden leaks)?

As I noted at the time, DOJ’s new protections for the press applied not to the act of journalism, but rather to members of the news media. DOJ’s own Domestic Investigations and Operations Guide requires institutional affiliation before they’ll treat someone as a journalist.

“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.

[snip]

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. [my emphasis]

According to the DOJ, then, you have to get paid (preferably by an institution recognized to be a press) to be afforded heightened First Amendment protection as a journalist.

Except now House Intelligence Chair Mike Rogers wants to criminalize that — one of the main things that warrants you protection by DOJ as a journalist, getting paid — by calling it “fencing stolen material.”

REP. ROGERS: You — there have been discussions about selling of access to this material to both newspaper outlets and other places. Mr. Comey, to the best of your knowledge, is fencing stolen material — is that a crime?

DIRECTOR JAMES COMEY: Yes, it is.

REP. ROGERS: And would be selling the access of classified material that is stolen from the United States government — would that be a crime?

DIR. COMEY: It would be. It’s an issue that can be complicated if it involves a news-gathering and news promulgation function, but in general, fencing or selling stolen property is a crime.

REP. ROGERS: So if I’m a newspaper reporter for — fill in the blank — and I sell stolen material, is that legal because I’m a newspaper reporter?

[snip]

REP. ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?

DIR. COMEY: I think that’s a harder question because it involves a news-gathering functions — could have First Amendment implications. It’s something that probably would be better answered by the Department of Justice.

REP. ROGERS: So entering into a commercial enterprise to sell stolen material is acceptable to a legitimate news organization?

DIR. COMEY: I’m not sure I’m able to answer that question in the abstract.

REP. ROGERS: It’s something we ought to think about, is it not?

DIR. COMEY: Certainly.

So you’re not a journalist (and get no protections) if you don’t get paid. But if you do get paid, you’re fencing stolen property.

I do hope the traditional press recognizes the danger in this stance.

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Emptywheel Twitterverse
emptywheel @OKnox Look. I learned today I'm younger than Keanu Reeves. I'm not THAT old.
8mreplyretweetfavorite
emptywheel @onekade Also bc they've moved that to EO 12333 so it doesn't have any control.
9mreplyretweetfavorite
emptywheel I'm so old remember when we decided it only fed terrorists to make their beheading videos readily accessible. Apparently CNN is not that old
10mreplyretweetfavorite
JimWhiteGNV RT @joshuafoust: Famous principled conservative Trent Lott just got hired by Gazprombank to lobby against Russian sanctions #classy http://…
15mreplyretweetfavorite
emptywheel @onekade CLICK OUR LINK TO SEE DEATH AND KILLING but the terrorists are the only problem. @shawncarrie @CNN
16mreplyretweetfavorite
emptywheel RT @mlcalderone: Politico CEO-turned-WaPo CEO Fred Ryan stresses winning the morning in meeting with staff: https://t.co/b2gbJLtVwv
22mreplyretweetfavorite
emptywheel @charlie_savage Isn't McRaven's shuffling of OBL photos to CIA to get them classified akin to that? @Krhawkins5
28mreplyretweetfavorite
emptywheel @youbsanctioned So even more cynical than it appears on first glance?
34mreplyretweetfavorite
emptywheel @charlie_savage Which means Hellerstein's SOL?
36mreplyretweetfavorite
emptywheel @youbsanctioned Interesting. Thanks.
41mreplyretweetfavorite
emptywheel @youbsanctioned So why do they ask Treasury and not State for permission?
50mreplyretweetfavorite
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