Category: Mass Communication Law

Two articles appeared in the Times today which call into question the balance of power between government enforcement and journalists’ privilege.

First, the “F.B.I. Is Seeking to Search Papers of Dead Reporter.” The family of a Washington reporter who recently passed away is fighting attempts to dig through papers to search for classified material. Of particular concern is the apparent fishing expedition that the F.B.I. wishes to go on:

“They talked about the Aipac case and that they thought Dad had some classified documents and they wanted to take fingerprints from them” to identify possible sources, he [the reporter’s son] recalled. “But they said they wanted to look at all 200 boxes and if they found anything classified they’d be duty-bound to take them.”

Also in the news are the subpoenas of reporters for their notes in the ongoing Plame leak scandal.

Traditionally, a reporter’s notes or other materials used in the newsgathering process (different courts in different locales have set different standards of protection). The argument is that these materials are necessary in forming effective speech. One might say that not protecting this material could lead to even less depth in reporting, and more superficial coverage like that of 24 hour cable news, blogs, and even this post (more feeling, less fact). When the authorities wish to simply troll through materials looking for broken laws, we must really worry about chilling journalist speech.

There have been a number of stories lately which really highlight the question of the responsibility of corporations to protect or even stand up for the rights of their users.

1. A short video on C Net shows the pleas of a family member of a Chinese journalist who was arrested based on information provided by Yahoo.
2. A recent Times article discusses AT&T’s role in giving government officials access to data traveling across their networks for “further analysis.”
3. Finally, while Google resisted the US government’s efforts to gain access to their data, their relations with the Chinese government appear to be more friendly.

Our Constitution grants that “Congress [read as the government] shall make no law” abridging freedom of speech, but as private entities begin to have more power over our speech (and as they collect increasing amounts of personal data) the question of private speech abridgement is increasing in importance. Further, as these articles show, the problem may be exacerbated by our government acting together with companies (which aren’t bound by the Constitution to protect our speech) to effectively engage in speech-restrictive activity.

Is this problem legal or ethical? In cases where the impact may be indirect, is it really a problem at all? What makes the above cases so alarming is that the collaboration may actually result in people ending up in jail (or worse). Journalists have argued for a press privilege in part because there is a belief that they should not help law enforcement do their job (essentially, let police do their own investigating). While resisting government demands may put their business in jeopardy, perhaps fighting on behalf of their customers on similar grounds is a reasonable expectation. One would hope that American citizens would stand up for our Constitutional principles, and perhaps that our corporate citizens would do the same.