Bloggers under fire?
This isn't a file-sharing issue, but it's one that may be of interest to the bloggers among us. Recently there have been a few potential legal concerns surrounding the operation of weblogs. The first being whether or not bloggers enjoy the so-called "reporter's privilege," that in some jurisdictions, allows a journalist to protect the identities of his/her sources. The second issue is the recent sabre-rattling by Bradley Smith, a Federal Election Commission (FEC) commissioner who claimed that the linking of political campaign sites on a blog may violate FEC regulations. I'll try to parse out these legal issues.
The reporter's privilege is designed to allow reporters to protect the identities of their news sources. The purpose of this is simple: news sources tend to be much more candid when they are assured their names aren't going to turn up in a story or an investigation. This poses a dilemma, however. Prosecutors are sometimes faced with the prospect of losing their case if they cannot determine the source of certain evidence. Evidence from an unnamed source generally cannot be admitted into court, as the accused has a constitutional right to "confront his accusers," not to mention the hearsay problems. This dilemma has resulted in many
court cases, and the courts vary greatly on the issue of privilege. The states also vary on what they define as "journalists." Some require that a journalist be one who makes a primary living at it, others take a broader view of what constitutes a journalist. But no state expressly includes online publication as a journalistic function.
The problem with bloggers is that no one is sure where they stand in all this. Some blogs are professional endeavours, while many others (the vast majority) are amateur operations. After all, the weblog is today's media access for the masses. If a blogger is served a subpoena to disclose the identity of some source, how much power will the blogger have to resist it? It's becoming a big issue, and will only get bigger, as weblogs continue to leverage more influence on society. Currently, Apple is
strong-arming some of the Apple-enthusiast sites to obtain sources of leaked product information posted on the sites. A judge
recently ruled in Apple's favor, but has
delayed the decision in order to hear more arguments. Free press is free press, and there should be no distinction between one that publishes on paper and one that publishes online.
The second issue involves bloggers linking to political campaign sites. FEC commish Smith stated in a
CNET interview that such linking could put the blogger clearly in the sights of the FEC, citing the 2002 campaign finance law. The 2002 law had a provision exempting Internet entities, but a judge overturned that provision, paving the way for the FEC to go after certain Internet campaign activities. This issue also touches on the reporter's privilege issue discussed above, as the FEC has no problem with newspapers and other "traditional" media discussing campaigns. There has been some
legal commentary claiming the FEC cannot pursue bloggers, but the fact remains that there is a cloud of uncertainty over the issue of political blogging.
There is a double standard here. Again, it's a situation where the law lags technology. There is no reason why online publication should not enjoy the same rights as traditional media.
Cheers.