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.

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. RexFlex says:

    I think as long as the NSA is run by the Army then the POTUS has final trump on anything regarding the content, analyzation and delivery of anything they possess or want to possess. Mike Rogers is just continuing to play the best hand for the executive while squandering any power Congress might have.He must be really concerned about what is still out there in Snowden land.

  2. orionATL says:

    @Anonsters:

    mike rogers needs to have some of his stassi-copying, authoritarian remarks played back to his constituents in the form of political advertisements over the next 4-6 months.

  3. Anonsters says:

    @orionATL:

    Yeah. To clarify, I meant he needs to be the target of a political campaign to get him out of Congress. Not in the “sleep with the fishes” “needs to go” sense. :P

  4. earlofhuntingdon says:

    Mr. Rogers has never met a constitutional protection he didn’t want to claim for himself but deny to others (at least denied to those not packaging contributions for his elections).

    Mike is also not so cleverly obfuscating the point by harping on paying for materials. He and the administration, of course, are more concerned about their publication and the consequences of doing so. And the most damaging leaks are disseminated freely. Whistleblowers rarely charge for their services; by definition, they are motivated to act, at least in part, as a public service. They are disclosing what looks to them to be high crimes and misdemeanors. By focusing on the purported sale of materials, Rogers is clouding the issue while attempting to impugn the vast number of people who disclose secrets because they reveal government and corporate wrongdoing of a high order.

    Mike Rogers should also be concerned about the precedent he claims to want to set. What if he were arrested for using without attribution presumably copyrighted materials produced by others? Much of what’s now regarded as legislation, rules, regulations, position papers, and Edward Bernays-style PR campaigns, for example, comes from lobbyist shops along K Street.

  5. emptywheel says:

    @Anonsters: There’s a teeny tiny part of my that would consider running an indy carpetbag run against him (his district is 1 hour away from me) to highlight what a problem he is for the Constitution.

  6. orionATL says:

    so how does mike rogers assign ownership to documents that are paid for with public money?

    it is not a given in my mind that snowden stole anything.

    it is a given in my mind that documents paid for with public money are NOT the property of the nsa and should be readily available to the public and to the congress for oversight.

    my question to the congressman rogers would be:

    – should congressmen or government officials who keep public documents hidden be charged with conversion of public property for personal use both with regard to power retention and to financial gain (campaign money and more) and prosecuted accordingly?

    – should public officials and congressmen who lie to the congress be prosecuted?

  7. Tom in AZ says:

    As for the ‘traditional press’, Marci, I was told by an uncle of mine while I was a kid: ‘Well Tommy. Why don’t you wish into one hand and shit in the other and see which on fills up first.” ;) Sadly.

  8. Evangelista says:

    The conundrum stumping Representative Rogers is a Corporate United States conundrum entirely. In the Constitutional United States, where the Preamble to the Constitution assigns “We the People” the owners and ultimate authorities in the Republic of The United States (and each of them), all belongs to We the People to begin with. This precludes anyone a citizen of the (Constitutional) United States being able to steal information from the government, the servants, of the United States. Being paid has naught to do with the question.

  9. orionATL says:

    @Evangelista:

    i’m very much agree.

    i will add that it is an extraordinary affirmation of george orwell’s imagined totalitarian society

    that a former member of america’s domestic national police (aka, fbi), congr mike ford, refers to the release of documents that reveal monumental american government theft (by nsa, fbi, cia, et al.) of information belonging to american citizens, to individuals living in america, and to citizens and government officials of other nations,

    as “theft”

    given that the nsa, fbi, and cia, et al., STEAL monumental quantities of data from individual americans every day.

    on the other hand, edward snowden’s taking documents vitally necessary (because gov’t officials are habituated to and excused from lying to us) to prove that our government is stealing our information from us is labeled as “theft”.

    “stealing” is not stealing when the u.s. gov’t steals private information from its citizens

    “stealing” is stealing when an individual american with access to documents proving gov’t lying about gov’t stealing shows those documents to individual privacy advocates and to news organization.

  10. lefty665 says:

    Rogers is mind boggling. The idea that selling the newspaper, or paying the reporter, creates the criminal act of “fencing stolen material” stands the first amendment on its head.

    By that logic, the NYT was guilty of “fencing stolen material” because it charged a quarter for the edition containing the Pentagon Papers.

    Who needs the Espionage Act when you’ve got good old criminal law?

    Sedition, it’s time for Rogers to be recalled, charged and tried.

  11. ess emm says:

    On the bright side, Lofgren appears to have joined forces with Amash—so maybe there’s hope for organized political opposition to NSA.

    ew, do you think Lofgren can make a difference on the HJC?

  12. HotFlash says:

    This from Rogers intro to his twitter feed: “The latest from Mike Rogers (MI-08) (@RepMikeRogers). Representative for Michigan’s Eighth Congressional District, Chairman of the House Intelligence Committee, Army Veteran, Former FBI Agent. Howell, Michigan”

    I remember noting when he first ran that the other ex-FBI agent running for office at the time was Coleen Rowley. She didn’t get in. But I wondered what this guy was gonna do, was he a straight-shooter or what, so I kind of kept an eye on him. I have since concluded that he is *still* an FBI agent, but currently on assignment to Congress. And then there’s the Mrs,: “His wife, Kristi Clemens Rogers, was previously President and CEO of Aegis LLC, a contractor to the United States Department of State for intelligence-based and physical security services.” per wiki.

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