Archive | Freedom to Gather Information

See a Crime and Videorecord It? Go to Prison

That’s what this proposed South Carolina bill (S.B. 878) (sponsored by Sen. Sheheen — who is running for governor — and now before the Senate Committee on the Judiciary) would provide:

(A) It is [a felony punishable by up to five years in prison] for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60, during its commission … [except for]

(1) viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2) security surveillance in bona fide business establishments;

(3) accidental or incidental recordings;

(4) any official law enforcement activities;

(5) private detectives and investigators conducting surveillance in the ordinary course of business; or

(6) any bona fide news gathering activities.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could [...]

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The Aurora Mass Shooting, Choice of Law, and Newsgatherer Shield Statutes

Reporter, who is based in New York, gathers information in Colorado, related to a Colorado crime. She returns to New York, but is subpoenaed to appear in Colorado court proceedings, to testify about her confidential sources. Should New York newsgatherer shield law or Colorado newsgatherer shield law apply? An interesting and unusual choice of law problem, on which New York’s highest court split 4-2-1 yesterday in In the Matter of Holmes v. Winter (N.Y. Dec. 10, 2013). An excerpt:

New York’s Shield Law provides an absolute privilege that prevents a journalist from being compelled to identify confidential sources who provided information for a news story. In this case, the issue is whether it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names of confidential sources or face being held in contempt of court.

Petitioner James Holmes is charged with multiple counts of murder, among other offenses, arising from a mass shooting at a midnight screening of a “Batman” movie at an Aurora, Colorado movie theater. Twelve people were killed during the incident and 70 others were wounded. Holmes was arrested at the scene soon after the violence ended. Anticipating that the shootings would generate widespread media attention, the state court presiding over the criminal charges—the District Court for the County of Arapahoe—immediately issued an order limiting pretrial publicity in the case by either side, including law enforcement.

On July 23, 2012, while executing a search warrant, the police took possession of a notebook that Holmes had mailed to a psychiatrist at the University of Colorado before the shootings. Holmes asserted that the notebook, which

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Google Books’ Scanning and Snippet Display of Books Is Fair Use, and Thus Not Copyright Infringement

So holds Authors Guild, Inc. v. Google Inc. (S.D.N.Y. Nov. 14, 2013). I’m still on the road, and thus can’t blog about the opinion in detail, but I’ve read it and I think its fair use finding is quite right.

Thanks to How Appealing for the pointer.

UPDATE: Matthew Sag has a summary of the reasoning. [...]

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Campus Videorecording and Bans on “Harassment” and “Intimidation”

As the previous post noted, I’m passing along another brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This one is on behalf of the Student Press Law Center and the Foundation for Individual Rights in Education, in O’Brien v. Welty (9th Cir.) (the link is to the decision that is being appealed). My students Curtis Brown, Sara Liss, and Ali Vaqar worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

Summary of Argument

Videorecording is presumptively protected by the First Amendment. To be sure, videorecording, like other protected First Amendment activity, may be subject to more restriction in nonpublic fora and limited public fora than in traditional public fora. If a university implements a policy clearly prohibiting videorecording professors in their offices without their consent, such a policy might be constitutional.

But the 5 Cal. Code Regs. § 41301(b)(7) ban on “interfer[ing]

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Court Upholds Ban on Photographing Border Checkpoint

Lower courts have recently been holding that the First Amendment protects people’s right to audiorecord and videorecord in many public places, especially when they are recording the conduct of government officials. (See, e.g., ACLU v. Alvarez (7th Cir. 2012) and Glik v. Cunniffe (1st Cir. 2011).) This makes a good deal of sense; just as restricting the spending of money for speech interferes with the ability to speak, and is thus presumptively unconstitutional, so restricting audiorecording and videorecording events in public interferes with the ability to effectively and persuasively speak about those events.

At the same time, this opens up a bunch of questions about what limits, if any, there are on this right. (For instance, many states have laws barring one party to a conversation from secretly recording that conversation, at least in many circumstances, yet that too burdens people’s ability to gather information.) Here is one court decision from a few days ago, Askins v. U.S. Dept. of Homeland Sec. (S.D. Cal. Sept. 20, 2003), upholding such a limitation. I’m not sure what the right analysis is here, but I thought the court’s discussion was worth passing along:

According to the Complaint, Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently crosses the border into the United States. He maintains and contributes to a blog that addresses environmental issues and human rights abuses in the U.S.-Mexico border region. Mr. Askins’ work “involves extensive research, investigation, and analysis of CBP activities.” …

On or about April 19, 2012, Mr. Askins took “three or four photographs of the exit of the secondary inspection area” while standing approximately “50–100 feet from the exit from the secondary inspection area.” When he took these pictures, he was in the United States and “not engaged in the act

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Texas Ban on Photographing People Without Their Consent “With Intent to Arouse or Gratify the Sexual Desire of Any Person”

As I mentioned last year, a Texas appellate court upheld this statute against a First Amendment challenge. This past Friday, though, a different Texas appellate court struck the statute down (Ex parte Thompson (Tex. Ct. App. Aug. 30, 2013)). The court reasoned:

1. Photographing (at least in public places) is presumptively First-Amendment-protected activity. This includes photographing people who are in such public places, with or without their consent.

2. Prohibiting such otherwise constitutionally protected photography based on the photographer’s “intent to arouse or gratify the sexual desire of any person” is unconstitutional. “[T]he statute requires law enforcement officers to make subjective judgments regarding the photographer’s intent…. [I]nnocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment.”

3. More broadly, the court concluded that “It is not enough to say a statute is not overbroad simply because it is directed at conduct with intent, if the intent portion of the statute regulates freedoms protected by the First Amendment.”

I’m not sure the reasoning is as clear as it could be, but the result and the general approach seem right to me. Thanks to How Appealing for the pointer. [...]

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Will NYT’s James Risen go to Jail?

Last Friday, the U.S. Court of Appeals for the fourth Circuit rejected New York Times reporter James Risen’s claim of reporter’s privilege in United States v. Sterling. The underlying case is a federal prosecution of a former CIA official for allegedly disclosing classified information in violation of the Espionage Act. The federal government believes Sterling gave information to Risen, who subsequently published some of the material. A federal district court judge had quashed the federal government’s effort to subpoena Risen and force him to testify, but on Friday a divided panel of the Fourth Circuit reversed, holding that the federal government could indeed force Risen to testify. According to the Court, the First Amendment does not protect a reporter from having to reveal his sources (though Congress could well enact such protections).

For more on the decision, see Lawfare, Jost on Justice, Politico’s Josh Gerstein, and (of course) the New York Times.

UPDATE: Kenneth Jost, Randall Eliason, and Ted Boutros discussed the case on HuffPostLive. [...]

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Whistle-Blower, Criminal, or Both?

The NYT has posted a “Room for Debate” feature on whether Edward Snowden should be seen as a whistle-blower or a criminal (if not both). My contribution begins:

Investigating and prosecuting Edward Snowden is a priority, but it should not distract from the far more important issues raised in the past week. Although some Americans may be unnerved by the details of the National Security Agency’s surveillance efforts, the more troubling revelations are that relevant members of Congress may not have been adequately briefed on the programs and that the Foreign Intelligence Surveillance Court seems willing to accept a broad and aggressive reading of the N.S.A.’s authority under the Foreign Intelligence Surveillance Act. Secrecy is necessary for national security programs, but so too is democratic accountability.

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Did Eric Holder Lie to Congress?

The Hill reports that the House Judiciary Committee is investigating whether Attorney General Eric holder lied to Congress when testifying about the Justice Department’s surveillance of reporters and media organizations.

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

AtlanticWire has the full exchange that prompted the investigation and additional background here.

Now I’m no fan of the Attorney General, and have been critical of the Administration’s decision to target journalists in its leak investigations, but if this is all there is, I don’t see it.  Did Holder suggest he had less involvement in the Rosen case than he, in fact, had.  Sure.  Did he say anything that was untrue or that would justify charging him with lying under oath?  No.  Based on what I’ve seen reported, it’s not even close.

The core of the claim is that the Attorney General’s testimony conflicts with the fact that he signed a warrant application that attested that there was “probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”  But there’s no contradiction between Holder’s statement and his reported actions, let alone a [...]

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Jonathan Adler on Leak Investigations

Apropos the recent posts on the Administration’s leak investigations and the press, I thought I’d note three items by our own Jonathan Adler from when a similar issue arose during the Bush Administration: Reporting Is Not a Crime: Conservatives Should Think Twice About Criminalizing Journalism (National Review Online), A Troubling Prosecution: United States v. Rosen Has Its Thorns (National Review Online), and Prosecuting the Press (a chain of posts on the subject here at the Conspiracy). [...]

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Leakers, Recipients, and Conspirators

Leaks to reporters — and investigations of the leaks that included subpoenas of reporters’ e-mail logs and searches of reporters’ e-mail — have been in the news; see this post by Orin about the AP story and this post by Conor Friedersdorf (The Atlantic) about the Fox News story. I thought I’d say a few things about the First Amendment issues involved in such matters, especially in response to the Friedersdorf post.

1. To begin with, let me define the problem, and define it broadly: A wide range of laws that bars certain people from revealing certain information that they themselves learned in confidence, having given a promise of confidentiality. To give just a few examples,

  1. Federal law (18 U.S.C. § 793) does this (among other things) for secret defense information.
  2. Federal law does it for confidential income tax information, and many other matters.
  3. Trade secret law does it for certain kinds of business information (some trade secret claims are civil and some are criminal, but this doesn’t matter for First Amendment purposes).
  4. Nondisclosure agreements do the same for other kinds.
  5. Professional regulations and related statutes do this for attorney-client, psychotherapist-patient, and doctor-patient confidences.
  6. Court orders do this for information gathered through discovery in legal cases.

Relatedly, federal law bars people from electronic eavesdropping on cell phone calls, and also prohibits the illegal eavesdroppers from communicating this information to others. This isn’t exactly the same, because the original misconduct here consists not of illegally leaking information to which one has legal access, but illegally accessing the information in the first place. Still, downstream publication of illegally leaked information and publication of illegally accessed information are quite similar in many ways — they all involve information that by law ought not be communicatable, that the original leaker (or [...]

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Is the Seizure of the AP’s Phone Records a “Non-Story”?

In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records.  As Orin notes, the Justice Department has special rules for this sort of thing.  Yet there are reasons to doubt whether the government followed these rules.  Among other things, the government is required to take ” all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.

This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported.  The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary  information through other means were not undertaken.

Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required.  If so, there might not be cause for outrage.  But that would hardly make this a “non-story.”

UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.

SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here [...]

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Justice Department Seized AP Phone Records

The AP reports:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The Justice Department notified the AP on Friday.  More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.

UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner.  It is, however, one of the few (if only times) the seizing of such records has become public.

UPDATE: And be sure to see Orin’s post above. [...]

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Photographer Peter Parker Couldn’t Be Reached for Comment

YNN Rochester reports:

Amid the filming process for “The Amazing Spiderman 2” in Rochester, film crews and police, have been walking a fine line with media and civilians over public photography rights.

The question is: if police and production crews tell you not to photograph or videotape their public work, are they violating your civil rights? …

YNN’s own cameraman was told by police and film crews that he couldn’t shoot video from designated public viewing areas. Civilians who spoke with YNN were given similar instructions. [The mayor, the police chief, and the spokesman for the production company, however, later stated that such photography is permitted. -EV]

Given courts’ recognition of the general right to photograph in public places, I can’t see how photographing film shoots would be any different, so long as the photographer is standing where the public is allowed, and not blocking traffic or some such. In some situation, some commercial distribution of some of the photographs might be copyright infringement or infringement of the right of publicity, but often it won’t capture copyrighted expression, or will be fair use; mere taking of the photographs, and most noncommercial distribution of those photographs, would not be infringing, and in any event the possibility of such infringement strikes me as hardly a matter for the local police. And it appears from the story that the official views of the mayor and police chief are that such photography is indeed permitted. [...]

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Arrest for “HIPAA Violation” Based on Citizen’s Recording of Encounter Between Police and Another Citizen

That’s what the St. Paul Pioneer Press reports:

Andrew Henderson watched as Ramsey County sheriff’s deputies frisked a bloody-faced man outside his Little Canada apartment building. Paramedics then loaded the man, a stranger to Henderson, into an ambulance.

Henderson, 28, took out his small handheld video camera and began recording…. [A] deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said. “We’ll just take this for evidence,” Muellner said. Their voices were recorded on Henderson’s cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. “If I end up on YouTube, I’m gonna be upset.” …

Randy Gustafson, spokesman for the Ramsey County sheriff’s office … said, “It is not our policy to take video cameras. It is everybody’s right to (record) … What happens out in public happens out in public.”

One exception might be when a law enforcement officer decides that the recording is needed for evidence, he said. In that case, the officer would generally send the file to investigators and return the camera on the spot, Gustafson said….

A week later, Henderson was charged with obstruction of legal process and disorderly conduct, both misdemeanors. He had been filming from about 30 feet away, he said….

The deputy wrote on the citation, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.” …

The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.

The rule deals with how health care providers handle consumers’ health information.

“There’s nothing in HIPAA that prevents someone who’s

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