(Wikimedia Commons)

Over at Poynter, Tom Rosenstiel talks about China’s recent censorship protests.  “It is telling that the protests in China this week over government control involve a newspaper and censorship–not a military tank in a public square.”  About half of China’s population is online.  Rosenstiel discusses how the web causes interesting fractures in what kind of information gets shared (many Chinese willing to talk movies and music, very few about politics).  While the web provides an equalizer of sorts (or the opportunity for equality) in international information trade, repressive governments find a way to study and adapt to new technologies (better, faster, stronger than journalists?).

“Citizen journalism” – the reporting of news events by non-professional reporters – isn’t just a nifty little gadget that we pros can append to our reporting, to make it seem more “social” or interactive online. When circumstances and agencies stand in the way of news reporting, grassroots reporting (my preferred term) becomes an indispensable part of the news-gathering process.

We’ve seen that over the past weeks with the Occupy movement, and especially last night in New York, when city police launched a middle-of-the-night raid on peaceful protesters camped out in a private park in lower Manhattan – then blocked and even arrested news reporters who showed up to cover it.

By now, we should be used to relying on readers and viewers to provide coverage for us in times of natural disasters. Sure, we can drive the trucks to the point where a hurricane is forecast to make landfall, but forecasts aren’t always spot-on. And we get little warning for tornadoes, and none for earthquakes. (Twitter notwithstanding.) Professional journalists have relied upon eyewitness descriptions, photos and videos from people on the scene of calamities, since long before the Internet.

But if that’s all we’re using user-generated content for in our news reports, we’re leaving ourselves too vulnerable to authorities who wish to control our coverage. Organizers and supporters of the Occupy movement have recognized the importance of putting cameras in the hands of participants, to minimize the chance that a newsworthy moment happens without being recorded for the public at large.

That ought to become more journalists’ role, too – not just specifically for Occupy protests, but for all continuing coverage of daily life in our communities. I hope that reporters across the country take into their news meetings a copy of that NY Times blog post I linked earlier in this piece, and say to their colleagues, “we need to find ways to prevent this from happening in our community.”

This isn’t just about just riding your local officials so your community’s voters won’t elect the type of official who orders a press blackout of the news. Good luck with that. It’s about making a press blackout a pointless endeavor, by inspiring, training and enabling as many people in your community to become witnesses for the news, 24/7.

Afraid of cultivating your competition? Don’t be. If you can’t deliver the news, you’ve got no chance of surviving, much less making money, in the information marketplace. We need grassroots reporting.

And don’t forget why you got into this business. Surely it wasn’t for the great pay, the job security or the cushy hours. If you’re like most journalists, you got into this business to raise hell and right some wrongs. There’s nothing wrong with recruiting every ally you can to help.

The First Amendment never belonged to a single industry or its employees anyway. It belongs to everyone. The freedom of the press is a public right (along with the freedom of speech and to peaceably assemble). So let’s encourage our fellow citizens to use their freedom of the press, even when authorities try to say professional journalists can’t.

Especially when authorities try to say we can’t.

What was once a “you can’t yell ‘fire!’ in a crowded theater” exception to First Amendment protections has mutated into “you can protest only in approved zones during approved hours of the day using approved personal belongings and stances.” Don’t link arms. Don’t lie down. Don’t stay overnight.

Rights are like muscles. Use ‘em or lose ‘em. The more citizens we bring into the process of reporting the news, the stronger our freedom of the press will become.

Egypt’s crumbling regime has resorted to traditional techniques for silencing reporters, including beatings and arrests. (Reporters also have been assaulted by pro-government thugs during the ongoing anti-government protests.) But it was the Egyptian government’s action to cut access to the Internet early during the protests that also should prompt journalists around the world to take a closer look at their government’s attitude toward controlling the Internet.

Even here in the United States, there’s far from political unanimity on how the government should address the Internet. Consumer advocates want to the Federal Communications Commission to expand to wireless services its rules blocking Internet providers from slowing access to content providers who don’t pay telecommunication companies an extra fee, beyond hosting and bandwidth charges. The telcos want the government to butt out and quit preventing them from finding new ways to make money to maintain and expand their networks. The Department of Homeland Security is shutting down websites (including ones outside the US) that link to live streams of copyrighted televise broadcasts.

And some members of Congress have proposed legislation that would allow the government to shut down parts of the Internet in a “national emergency.”

Sen. Susan Collins (R-Maine) told Wired.com last week that she might reintroduce the Protecting Cyberspace as a National Asset Act of 2010 in this Congressional session. The bill is designed to legally enable the federal government to shut down parts of the Internet under cyber attack – creating an effective firewall between comprised networks and the rest of the Internet.

I can’t imagine not wanting to preserve the integrity of the Internet in a time of crisis, when efficient communication can become even more important. But giving anyone in the federal government a “kill switch” for the Internet ought to concern any advocate for free speech, especially in light of what Egypt has done.

The bill contains a provision against censorship, but, as Wired.com pointed out, similar language in the Patriot Act didn’t stop the feds from using that legislation to spy on interest groups.

The definition of an attack changes with your point of view, as well. I’m certain that the Mubarak regime in Egypt considered the outpouring of support for change in that nation an “attack” on its national security.

Throughout history, people have made money and achieved power by controlling access points in commerce, including ports, portages, mountain passes, and roads. In recent times, others have earned money and power by owning access points for the passage of information, such as the town’s printing press, a broadcast license or, later, cable TV franchise.

While restricting the flow of people, goods and information through access points can enrich those who control those points, opening access helps spread that wealth among a larger population, often creating additional wealth in the process.

It’s ridiculous to insist that the U.S. government stay out of the Internet. Heck, it created the thing. Like interstate highways or global air and sea traffic routes, the Internet’s too important to allow it to fall under the control of a handful of corporations.

Or a few government officials.

That’s why I believe that government’s role in the Internet ought to be:

• Protecting open access to this information marketplace, preventing service providers from denying access to publishers.
• Promoting the expansion of Internet access to more people.
• Promoting the expansion of bandwidth across the Internet.
• Promoting the establishment of more redundancy within the Internet, to improve reliability and minimize the effectiveness of both cyber attack and censorship.

Regardless of your opinion on those points, I hope that the revolution under way in Egypt will inspire more online publishers to speak up when politicians debate regulation of the Internet. This issue means too much to us as business people, and too much to us as leaders in the communities we serve, for we to keep quiet and leave these decisions to others.

What’s happening in Egypt also reminds us that brave reporters risk their lives to bring the rest of us the news. We owe it to them, as well as to their audience, to do everything we can to ensure that the news they report can and will get out to the rest of the world.

But, I have to say, I’m starting to feel really disappointed in the lack of outrage journalists are having to the Gizmodo raid. Maybe I’ve completely missed it, but we should be up in arms here!

And by “we,” I don’t just mean Webby nerds, tech geeks or digital dorks. By “we,” I mean journalists in every newsroom cross platform, across the country.

Where is the statement by the Society of Professional Journalists? The American Society of News Editors? The Online News Association, for heaven’s sake!?!?

If you missed it, Gizmodo posted a recap from their point of view, but here’s my understanding: (Note: You could easily do a search-and-replace here and change “lost” or “found” to “stolen” … or can you? Too soon to say.)

Act I: A new, prototype Apple iPhone was “lost” at a bar in the Bay Area. When this news first broke, many of us thought it was a crafty Apple P.R. stunt rather than a bonehead mistake. Turned out it was the latter and the bonehead employee was later named.

Act II: The “finder” of the phone allegedly attempted to contact Apple to make it aware of the misplaced device… but in the end, Gizmodo paid an estimated $5000 to get their hands on the “found” iPhone.

Act III: After Gizmodo posted a video and photos showcasing the “found” iPhone, it received a memo from Apple asking for their missing property back. The device was “bricked,” or remotely deactivated and made useless, presumably by Apple.

Act IV: Police raided the home of the blogger/reporter who posted the Gizmodo item. They actually knocked down his door while the blogger was not home and seized several pieces of equipment, which included laptops, iPad and more. The police have halted their investigation, once someone pointed about that the blogger is more than likely covered by the federal and state shield law.

Act V: ??? Who knows, but I can’t wait to find out.

Again, let’s get certain things out of the way here.

Yes, Gizmodo practiced checkbook journalism to purchase the iPhone. This is not a practice many of us do, condone or can even afford. But, sorry y’all, this type of journalism exists and is more common than we’d like to think. (One word: Paparazzi.)

Second, no matter the quality of it, Gizmodo is actively doing journalism. It’s not part of a legacy masthed, but one that was built by covering tech news — and it does so fairly well.

Third, you and I don’t know the details yet of how that phone was truly acquired. Hell, if Gizmodo was smart, they probably didn’t ask. But the device was acquired… someone leaked it… someone lost it… someone stole it… but the “it” was, and still is, big news. (Did you know Nokia has a missing device? I’m guessing not. Why? Because it ain’t an iPhone.)

Lastly, a journalist’s house was raided by authorities in connection to the device that he openly admitted and publicized he had. Don’t you think that was a little over the top?

So, I am asking myself, why aren’t we more pissed here? Where is our journalistic outrage? Where is the angry mob with pitchforks defending the first amendment right?

Would we be more outraged if instead of the phone it was some classified government document? Or if instead of a corporation like Apple contacting the authorities, it was the government?

Y’all, this is one of the biggest stories in modern journalism and we need to be on top of this… we need to get angry… we need to pick up our pitchforks pens and craft, at the very least, a statement that says this is not okay!

I love Apple too, but I love journalism more.

Pakistan President Pervez Musharraf has implemented some censorship to complement his state-of-emergency declaration. With the lines cut on several of Pakistan’s independent news outlets, many citizens have only the state-controlled media to keep them current on the increasingly tenuous resistance unfolding on their streets. And outside Pakistan’s borders, the communication pipelines feeding Western audiences are often muddled by the U.S.’s ambiguous allegiance to Musharraf.

As it did in Myanmar, Web journalism here fills an important void. Bloggers’ as-of-yet unregulated capacity to disseminate alternate perspectives and additional reporting offers hope for greater comprehension of the situation on the ground in Pakistan.

Sure, The Los Angeles Times had the story on Musharraf/Bhutto rival Nawaz Sharif’s return to Pakistan yesterday. But no mention of the neo-Taliban suicide bombs that took 30 lives in Rawalpindi, the third such attack in as many months. And good luck grasping the ever-tangling nuances of Pakistan’s election landscape from quick reports on cable news channels.

For those angles, Pakistani citizens, international journalists and foreign politicians alike have bookmarked sites such as The Pakistan Policy Blog for reliable, all-things-Pakistan dispatches. OJR caught up with PPB editor Arif Rafiq for his take on covering Pakistan and the role of non-MSM outlets in the fray.

Online Journalism Review: Can you start by telling me a little about your site, The Pakistan Policy Blog? How long have you been live, and what was your founding vision for the site?

Arif Rafiq: The Pakistan Policy Blog went live in August 2007. The site serves as a dedicated source of analysis and commentary on Pakistan’s politics and in doing so, it fills a major void.

I came to the understanding in August that Pakistan would be going through a critical period of change into at least January 2008. These changes would not only shape Pakistan’s future immensely, but they would also be of great interest to Western—particularly American—observers. It would serve the interests of publics and policy communities in the U.S. and Pakistan to have a more informed and engaged discourse. And that’s what I seek to do with the site.

OJR: Who are your readers, and how has site traffic behaved since Musharraf’s “state-of-emergency” declaration?

AR: Our readers seem to come from four major segments: 1) Educated and concerned Pakistani expatriates living in the the West or Gulf; 2) Government officials in Pakistan, the United States and other Western countries, and India; 3) Western journalists covering Pakistan or U.S. foreign policy; 4) Foreign policy bloggers.

Site traffic has increased considerably since Musharraf’s declaration of a state of emergency and has remained relatively high.

OJR: What cultural and political background is missing from the coverage the Western audience gets from the U.S. mainstream media? Where can they find it? Who is covering it well?

AR: Most U.S. MSM journalists covering Pakistan don’t have the requisite language skills, i.e. they can’t speak and understand Urdu, and they also haven’t covered Pakistan for long. That puts a greater burden on their local stringers and sources. Coverage of Pakistan has been traditionally weak, but due to the sustained focus on the country in recent weeks, that weakness has declined considerably. The requisite skepticism and knowledge of Pakistan’s cyclical political history seems to have been achieved by many of them.

Fortunately, Pakistan is not like Iraq and so you don’t the equivalent of American journalists writing from the Green Zone or embedded with coalition forces. They are largely free to move and benefit from the sizable English-speaking population there (as stringers, sources, etc.

Television coverage in the U.S. has been weak. That’s probably due to the nature of the medium. American television is one of the last places, I believe, where one should look for an accurate and informative outlook on the world.

OJR: To what extent are you in touch with the Pakistani media outlets? Bloggers and citizen journalists? Any prominent bloggers doing a particularly good job of disseminating information outside Pakistan’s borders?

AR: I haven’t had considerable interaction with Pakistani media outlets, bloggers or citizen journalists. Many sites have come out as a result of the emergency rule, but I would say the better ones (such as All Things Pakistan) have been around before that. There are many blogs made by young Pakistanis, such as The Emergency Times, that provide an important on-the-ground perspective. Their emergence reflects the sort of spontaneous rising of Pakistani civil society immediately after the imposition of emergency rule; but I would say Pakistanis would also be served well by more standardized or ‘professional’ blogs.

Another site, Pkpolitics.com, is particularly notable as it has been providing video of Pakistani public affairs TV programs. Its utility has declined however since Musharraf pulled the plug on the two leading private news channels.

OJR: Any sense of how they’re dealing with Musharraf’s independent-media crackdown on the ground there?

AR: Bloggers haven’t been targeted by the media crackdown, but it is conceivable that the government could begin banning certain websites. At this point, the government’s major focus as been the private print and television media. A major target has been the Jang Group, which operates two leading newspapers (The News in English and Jang in Urdu) and a television network, including GEO.

OJR: You link to live Pakistani TV from stations Aaj TV, TV One and Hum TV. Why those particular stations? How have the media restrictions in Pakistan affected traffic to that section? Any particular reason you went with JumpTV for that feature?

AR: I link to those stations because, at the time, they were among the few channels that were provided for free over the Internet legally. JumpTV was their chosen provider. One of the channels, AAJ, isn’t available via cable or satellite in North America. And I found its public affairs programming more appealing than some of the other Pakistani channels. Unfortunately, after governmental pressure, AAJ has suspended those programs (Live with Talat and Bolta Pakistan).

That was not the case this time last week.

On Friday, Sept. 28, the Myanmar government effectively shut down all cell-phone and Internet communication, stunting a citizen-journalism movement that had itself drawn international recognition.

The state-controlled media in Myanmar has been tight-lipped, to say the least. Communication with international news organizations has been spotty, and soldiers continue to turn reporters away at the borders. The message has been clear: “Nothing to see here.”

But armed with cell phones, cameras and laptops, common citizens and protesters stepped in to expose the conflict in real time. Some ran blogs of their own. Many dispatched pictures and videos of police violence to off-shore bloggers and news sites. Either way, they loosened the government’s chokehold on communication.

Now, with the ebb and flow of information from within at a standstill, the offshore sites are left to sustain awareness. A brand-new site out of Germany, Free-Burma.org, calls on bloggers around the world to post a “Free Burma” awareness graphic on any posts today, Oct. 4. Organizer Philipp Hausser talked to us about “International Bloggers’ Day For Burma” and the impact of Myanmar’s citizen-journalist phenomenon.

Online Journalism Review: First off, can you tell me a little about the history of your site?

Phillip Hausser: The original idea came from a Blogger in Italy. The well-known German blogger Robert Basic had an idea “to do something” and asked what could be done. Many comments; different opinions. Everything was discussed in a Wiki and the idea of an international blogger day was born.

Christian Hahn [Hausser's partner] and I found that this was a good idea to show the people in Burma our solidarity for their peaceful protests. To help the action to get better organized (the wiki was and is still very unorganized) we decided overnight to set up the domain and build a website.

OJR: And how have results been so far?

Hausser: It’s now in seven different languages, with an overwhelming success: Over 10,000 visitors came just in the first 24 hours, and over 30,000 visitors to date. The site [launched] Sunday.

The reason for so many visitors is a good working network. People spread the message within ours around the globe and many people joined.

And yes, the support was great! We reached many, many people in almost every country and had media coverage around the globe – all in 4 days.

Let’s see what happens on Oct. 4.

OJR: What sort of goals have you set for the site?

Hausser: The situation in Burma is getting more and more quiet in the last days; not because of a better situation, but because the military is trying to avoid any outgoing communication.

We want to keep this “burning topic” on top in the media. The bloody pictures are getting fewer every day, and the media are losing their interest to report about the topic. We want so set a peaceful sign to keep it on peoples’ minds.

OJR: Do you have a sense of how effective the government shutdown of Internet and cell-phone lines has been? How long did it take to figure out that outside communications had been halted?

Hausser: We/the bloggers realized very quickly that there was no more connection to Burma. Hours later the media spread the news. And yes, it was effective. Most blogs about Burma are written outside Burma (see our blog list on f-b.org). the blogs inside stopped refreshing and the remaining bloggers are afraid for their lives. They have taken pictures of themselves down from their blogs so the government can’t find them. Everybody there is in danger.

OJR: What are citizen journalists in Myanmar doing now to get information out of the country? Have they been able to get around the government barriers? If so, how?

Hausser: Not sure. But we know that it is not easy. They talk/write less about Burma every day. We try to stop that.

OJR: How are the off-shore blogs and sites like yours dealing with the block of information flow?

Hausser: To be honest, currently I’m more and more dealing with interviews and communication than working for the page. The response is overwhelming, more than we ever expected.

OJR: You’ve really tried to spread the word with Wiki, Digg, Facebook, Flickr, etc. How successful have those social media tools been in spreading awareness?

Hausser: Facebook is not directly connected with us, but they are promoting the action. Top referrers are Stumbleupon and ko-htike.blogspot.com. We used Flickr for the graphics collection, and the wiki as a democratic element to collect ideas, translations and everything else.

OJR: Finally, do you have a particular, numeric goal in mind for the big Burma blog day on Oct. 4?

Hausser: No, nothing. The visitor counter is growing very rapidly, as are subscriptions (see the news page for updates). But like I said: This is more than we ever expected, and no one knows what’s going on today/tomorrow. But I’m sure it will be a lot!

If you worked for a newspaper, it’d get set on the page, printed up and distributed throughout your circulation area. Once it was out, there would be no taking it back.

If you worked for a TV or radio station, you’d sked it for air; put it out… and there would be no taking it back, either.

But let’s say you work online. You get your story and upload it. But unlike in print or broadcast media, online stories can be “taken back.” If your website is hosted by an outside ISP, a letter or e-mail from an angry source might be enough to knock your story off the Web.

That’s what happened to a blogger in Claremont, Calif. this month. The anonymous blogger who posts as “Claremont Insider” had found the salaries and benefits of city employees on the city’s website. He published what he found in a Labor Day post on his blog. (Thanks to Kevin Roderick’s LA Observed for the tip.)

Soon after, according to a follow-up post on the Claremont Insider blog, Google, which hosts the blog through its Blogger service, pulled the post, in response to a note from the city claiming that the salary information was confidential, which would make its publication a violation of Google’s terms of service for Blogger. Claremont Insider followed up, disputing that public employees’ salaries could be confidential information.

The city came back with another argument, according to Claremont Insider. It claimed copyright over the images of employees’ paychecks published on the blog. The blogger accommodated by publishing the data in text form, and Google allowed the edited post to stand.

Attorney Michael S. Overing, who has taught media law at the University of Southern California’s Annenberg School for Communication and written for OJR, questioned the city’s claim.

“This would be a mighty thin copyright. Forms are not copyrightable. So, only the filled-in information would be potentially copyrightable. But, even then, those checks would be public records, subject to FOIA requests, subject to public scrutiny,” he wrote in an e-mail.

Overing cited a 1996 case, Richard E. Lindberg v. Kitsap County, that held a city could only use copyright to withhold documents from public view in very limited circumstances. [Corrects to note that the court did leave some room for very limited circumstances.]

What should you do?

Although the Digital Millenium Copyright Act mandates that online hosts, such as Google, take down infringing content when informed of its presence on their servers, the DMCA also includes protections for online publishers.

Most major online publishers are familiar with the “safe harbor” provisions of the DMCA. Designed for publishers and other online service providers who provide forums for users to publish content online, the procedures for challenging a take-down notice also can help a blogger, such as Claremont Insider, who faces a challenge over the legality of his content.

ChillingEffects.org offers a FAQ about the DMCA’s safe harbor provision on its website. The questions about counter notice and putback procedures are relevant to an incident such as this, put the entire page offers rewarding information for any online journalist.

A well-supported putback request can help you get your story back online, and quickly, if you respond as swiftly as Claremont Insider did. But how can news publishers prevent improper take-down requests?

The DMCA might offer some help with this, as well. In 2004, Diebold, the company behind most of the United States’ electronic voting machines, lost a DMCA case when Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford sued on behalf of publishers whom Diebold had targeted with DMCA copyright takedown notices.

From the post on LinuxElectrons:

“Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold’s e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.”

In Online Policy Group v. Diebold, a U.S. District Court in California ruled that [PDF file] “Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.”

Diebold ultimately agreed to pay damages and legal fees of $125,000, according to the plaintiff.

So even if a source manages to get your ISP to take down your scoop, if your information is appropriate, their action against you could turn out to be a very costly mistake.

OJR spoke with Dalglish about the heightened concern she sees from both journalists and the public about the culture of secrecy that has pervaded many parts of our government, as well as the status of a proposed federal shield law for journalists and some bloggers and a bill that its advocates say would improve administration of freedom of information regulations.

The beginnings of RCFP’s “secrecy beat”

OJR: Even before attacks of September 11, the Bush administration displayed a rare penchant for secrecy.

Dalglish: Right. [Attorney General Alberto] Gonzales, when he was the White House Counsel, tried to gut the Presidential Records Act [PRA], to essentially make it meaningless. There was the [former Attorney General John] Ashcroft memorandum interpreting the Freedom of Information Act. They were working on that well before 9/11. There was the Cheney energy task force meetings that they tried to put off-limits. They were pre-disposed to secrecy even before 9/11.

[Note: In June, 2007, the House Committee on Government Oversight and Reform issued a report alleging that senior Administration officials might have violated the PRA by using e-mail addresses assigned by the Republican National Committee to conduct official government business.]

OJR: How did journalists react to that predisposition toward secrecy in the very beginning?

Dalglish: Indifferently.

OJR: Indifferently? They didn’t see it as a real problem?

Dalglish: No, they didn’t see it as a real problem. They were caught unawares and they always thought, “Oh, we’re the only ones who care about that. Journalists are the only ones who care about that, so why even bother to report it?”

OJR: After 9/11, at what point did journalists get concerned. Was it the passage of the PATRIOT ACT?

Dalglish: Well the PATRIOT ACT doesn’t have much to do with information policy. And quite honestly, from my perspective, many of the things in the PATRIOT ACT are absolutely fine and absolutely necessary.

There were a number of things that happened after 9/11 that did impact the right of the public to know what was going on, but it wasn’t necessarily the PATRIOT ACT. I can really only think of one major area of concern in the PATRIOT ACT, and that’s section 215, which said that you could try to get tangible business information from any entity, and then, the librarians and the bookstore owners went nuts.

And we found out from the Attorney General that they were convinced that despite the Privacy Protection Act of 1980 that said you could not execute a search warrant on a newsroom, that because 9/11 was so special that the PATRIOT ACT would allow those search warrants to be executed on newsrooms.

OJR: Has anybody tried to do that?

Dalglish: No, not that I’m aware of.

OJR: There was information that had previously been public that suddenly got taken off-line after 9/11.

Dalglish: Yes. And there were rules that were implemented, executive orders that were written, there was laws that Congress did pass. For example, the law that creates the Department of Homeland Security exempted DHS from portions of the Freedom of Information Act. [RCFP has a detailed chronology of US government secrecy measures between 9/11 and 2005.

OJR: What motivated the Reporter's Committee for Freedom of the Press to start covering these attempts at secrecy as a distinct beat, with reports such as Homefront Confidential and your blog, Behind the Homefront?

Dalglish: The absolute certainty that the public wasn't going to learn nearly as much information as they used to, and that this administration was intent on placing valuable information off-limits.

Growing public support for open government

OJR: Where are we now in the effort to balance the legitimate need for secrecy with the public's right to know?

Dalglish: I think we're starting to bounce back a little bit. I think Congress has finally woken up. I think the media have finally woken up. I think the public is kind of waking up. They're asking very serious questions. I think the [Congressional mid-term] election in November [2006] was partly due to all of this stuff. People are going, “Okay, we gave you enough rope, and you hung yourselves. So know we’re gonna go in another direction.”

And I think the [June, 2007] Washington Post stories about Vice-President Cheney explain the passion for secrecy better than just about anything I’ve seen.

OJR: When you cite the Washington Post stories as a sign that the news media has awakened, are you saying that they haven’t been aggressive enough on these issues in the past?

Dalglish: No, there’s no question the press has not been aggressive enough on these issues. Many reporters have made the mistake of concluding the public doesn’t care about this stuff, and that it was quote-unquote inside baseball. But the public does care about this stuff.

And we’re starting to find out that yes, there is a need to keep some things secret. But when you keep some things secret with impunity, abuses of power occur.

OJR: What evidence do you have that there is widespread concern about this among the public?

Dalglish: I get letters; I get e-mails. Mostly, it’s what doesn’t happen. It used to be when I would go on television or on radio and whine about this, people would call in and say I was an unpatriotic jerk. Now, when I go on these TV shows or on these radio talk shows, people call in saying, “Oh thank God there are people like you! Where have you been?” It’s more of an attitude adjustment, rather than any concrete information I’ve been getting.

I’m not getting as many death threats, let me put it that way.

OJR: You were getting death threats before?

Dalglish: Oh, sure!

Current challenges facing journalists

OJR: How do you feel things stand legally in terms of civil liberties protections for reporters?

Dalglish: They’re chipping away in millions of tiny little ways. They’re trying to close down criminal prosecutions. They’re trying to keep us out of proceedings in Guantanamo. They’re trying to close down access to jurors. They’re trying to prevent us from finding out who it is we’ve kicked out of the country. The foreign nationals that we’ve deported because of some weird, wacky matrix system. They don’t want us to know anything about critical infrastructure, even to the point of ridiculous examples. They won’t even let you know — if somebody’s proposed to build a credit-card processing facility in Texas, and the local folks won’t even tell you what intersection it’s going on, because someone has told them that’s sensitive homeland security information. I mean there’s some really ridiculous things that are happening.

And, people are so worked up, and so frightened, that they’ve kind of let common sense fly out the window.

OJR: I recall that a few months after 9/11, I was teaching a computer-assisted reporting class, and we tried to get information on whether ground water had been contaminated around a particular plant. We couldn’t get the information, whereas it had been fairly easy to find that kind of thing out online before.

Dalglish: Yes, they took it down. They took a lot of that kind of information down, because, you know, a terrorist might use that to poison people! Well the same information a terrorist could use to do damage, citizens who live in that area might appreciate knowing so they can tell their children not to drink the ground water. It’s a total double-edged sword, and they’ve got to be so over-protective, that they’re not using common sense. How can you insist that the EPA clean up your ground water if you’re not allowed to know that it’s contaminated? It gets to be infuriating.

Legislative update

OJR: Reporter’s Committee for Freedom of the Press devotes a lot of its resources to keeping track of shield laws, sunshine laws and the like. How do we stand with regard to that?

Dalglish: The [proposed Federal] shield law might move in the House fairly quickly. We’re having problems with some members of Congress who are concerned that journalists are going to protect leaked national security information. So that’s kind of a sticking point.

The Open Government Act, sponsored by [Patrick] Leahy (D-VT) and [John] Cornyn (R-TX) in the Senate, and by [Henry] Waxman (D-CA) and some others in the House, should be a no-brainer, but [Jon] Kyl (R-AZ) has put a hold on that, and he’s single-handedly blocking it.

OJR: The “secrecy Senator.”

Dalglish: Yes, the secrecy Senator.

OJR: Can you talk just a bit about the Open Government Act, which is designed to strengthen the Freedom of Information Act?

Dalglish: It doesn’t do anything, as far I’m concerned, that’s all that controversial or remarkable. It put things back the way they used to be as far as shifting in reimbursing people who have to sue the government. It doesn’t create any new information that’s off-limits. It creates some new tracking procedures, and puts some teeth into the enforcement of the act, and hopefully will make it work better, make it more user-friendly.

I don’t think there’s anything in the world that should hold this thing up. But they are so pre-occupied by immigration right now, that I don’t think anybody’s in the mood to tangle with Kyl right now. [This interview was conducted on June 26, 2007; the controversial immigration reform bill was defeated on June 28.]

What journalists and the public should do to protect the public right to know

OJR: What should journalists be doing right now with regard to Freedom of Information issues?

Dalglish: I think what journalists should be doing, quite frankly, is reading our website every single day. They should be paying attention to the sunshine in government initiative. They should be paying attention to Open the Government.org. They should be paying attention to the Coalition of Journalists for Open Government. And they should be getting active in these FOI-related journalism groups.

Just stay informed, and I personally don’t think that it is a conflict for journalists to take a political position on something that has to do with the need for government to inform its citizens. Now, if you’re covering a committee in Congress that’s considering amendments to the Freedom of Information Act, should you be up there testifying in favor of the Act? No. But, what you should be doing is supporting the non-profit organizations that are trying to speak up on your behalf, to ensure your ability to do your job.

OJR: Are we doing an adequate job of making the public aware of these issues at this point?

Dalglish: We’re doing better. The American Society of Newspaper Editors has been working very hard the last two or three years on Sunshine Week. It started with newspapers, it spread to online and its spread to broadcasting. In March, right around James Madison’s birthday, we try to convey information to the public about why it’s important to support open government. Why it’s important on both the state and the federal level, and I think that’s been a remarkably successful project.

OJR: You’ve been in your job at RCFP for seven years now. In 2010, when July 4 approaches, what do you hope you will see?

Dalglish: I hope to see that the Freedom of Information Act has been amended; I hope to see that we have a reporters’ privilege – a shield law. And I hope to see that various news organizations and the non-profits are up there pro-actively seeking things from Congress rather than acting defensively.

Some of the experts we spoke to registered their strongest concerns about the Bush administration’s aggressive stance toward journalists. “George Bush is exceedingly bad news for this country on almost every front, and one of those fronts is his contempt for the press,” said David Rubin, Dean and Professor of the S.I. Newhouse School of Public Communications at Syracuse University. “He and his Justice Department, prosecutors, and the whole tone that he has set – are more than willing to use the subpoena power to get sources and get confidential information and basically, in his view, put journalists in their place.”

However, John Hartman, a journalism professor at Central Michigan University, predicted that in 2007, “The Bush Administration will be forced to back off on and drop its investigations and intimidations of journalists and news organizations as it is forced to spend time defending itself from various Congressional investigations, including those that might be preludes to impeachment.” Indeed, there are news reports saying that the President is beefing up his legal team in anticipation of Congressional investigations.

As critical as he is of the President Bush’s actions, Rubin doesn’t share Hartman’s expectation of change; “I don’t think anything changes him.” Rubin said it would not surprise him to see more journalists jailed in 2007: “Not only ultimately jailed, but more subpoenas for information, more subpoenas of phone records – whatever tactics [Attorney General Alberto] Gonzales and the Justice Department can come up with, they will.”

Hartman said a Congress led by Democrats will generally be more supportive of press freedom, and may even be open to passing a federal shield law, such as the Free Flow of Information Act sponsored by Sen. Richard Lugar (R-Ind.). Hearings were held on the bill last September, but “Congress might pass a federal shield law, but Bush would veto it under present circumstances,” Hartman wrote. “If he decides to govern from the middle and try to repair his public opinion ratings, Bush might allow it.”

But Rubin disagreed, noting, “[T]his is an issue that the Senate and the House have considered regularly since 1972, since the Branzburg case. So that’s almost 35 years ago, they haven’t done it yet. The situation is now far more complex than it was in 1972, now that you have online journalists and bloggers, which raise definitional issues. The mood of the country is not nearly as supportive of journalists as it was back then. The Congress has so much else on its plate this year, and it’s likely to be a highly contentious place that I just don’t think this is going to rise to the surface as an issue to consider. For all of those reasons, I would be shocked if a federal shield law was passed next year.”

In fact, according to a blog entry by CBS News legal consultant Andrew Shelton, Lugar’s bill died in committee last year precisely because Justice Department lawyers wanted to be able to compel reporters’ testimony in the forthcoming trial of Lewis “Scooter” Libby, who is charged with perjury and obstruction of justice in the illegal disclosure of the identity of CIA operative Valerie Plame.

In the area of copyright law, while big changes are not expected, there are still “many issues, both in terms of journalists reproducing content from copyrighted sources and, more significantly, having their work reproduced without permission,” said Jon Garon, Dean and Professor of Law at Hamline University School of Law in St. Paul, Minnesota. Those issues range from common internet practices that can expose journalists and bloggers to charges of copyright infringement to steps that online media producers may need to take to protect their work.

For example, bloggers frequently embed video or audio from sites such as YouTube or Odeo. But Garon said that even when the original source of the content is acknowledged, those bloggers may still be subject to charges of copyright infringement. While portal sites such as Google Video require that people uploading video to their site attest to their rights to the content they post, Google can’t guarantee that the posters are telling the truth. Someone who republishes that content without a demonstrable effort to prevent infringement can still be sued, Garon said.

Of course, most journalists use copyrighted material under the “fair use” provisions of U.S. copyright law. Those provisions allow for the republication of small portions of a copyrighted work for such purposes as news reporting, comment or criticism, or classroom teaching. The fair use doctrine has a long and venerable legal history, but Garon warned “the parameters of fair use are inherently fact-specific.” Further, as OJR reported last February, some experts are concerned that the improper use of cease-and-desist letters by copyright holders has caused online content to be removed.

According to Garon, one copyright issue that caused some controversy in 2006 will likely be ignored in 2007. That’s the law governing “orphan” works – works published before 1923 for which there’s no apparent copyright holder. Under current law, these orphan works are still under copyright – and anyone who uses them risks a lawsuit. In 109th Congress, Rep. Lamar Smith (R-Tex.), then chair of the Intellectual Property Committee of the House of Representatives, introduced the Orphan Works Act of 2006, which would permit their use when it can be demonstrated that a good-faith effort has been made to contact the copyright holder. Under fire from organizations representing professional photographers and others, Smith ultimately withdrew the bill from consideration, despite support from the American Library Association and others.

As to ownership issues, according to Hartman, “deregulation that would result in the lifting of cross-ownership restrictions is less likely to happen as Democrats are less comfortable with media conglomerates. Yet Democrats might support legislation that would make it easier for newspapers to survive and allow cross-ownership in circumstances where the newspaper would fail otherwise.”

Bloggers faced new legal challenges in 2006, both in the United States and internationally. Josh Wolf landed in federal prison for refusing to turn over unpublished video of a demonstration to a California grand jury. Hao Wu, who was imprisoned for five months by the Chinese government, apparently in connection with video that he was shooting for a documentary about underground churches in that country. Libel suits against bloggers are on the rise. And in December, an Australian court ruled that linking to copyrighted sound recordings can be illegal if it makes it easier to gain improper access to that material.

For Robert Cox of the Media Bloggers Association, these developments illustrate that many bloggers perform the same newsgathering functions as professional journalists, and thus require the same level of education, access and legal protection. His organization has spearheaded a training and certification program that would ensure that bloggers understand and adhere to high legal and ethical standards. MBA has negotiated agreements that will allow certified bloggers to obtain press credentials to cover such events as government press conferences and briefings.

Finally, “there’s something that’s extremely important in all of this, and it almost never gets talked about, Cox said. “Let’s start with this: Freedom isn’t free. If you’re going to publish – and bloggers are publishers – and you can’t back up what you’re writing with lawyers and resources to pay for all of that, you’re not going to last very long.” That’s why, Cox said, the MBA is negotiating with the insurance industry to offer liability insurance that bloggers can tap in the event of a legal fight. “As blogging and citizen journalism develops over time, you need to have access to this kind of support.”

China, Eritrea and Cuba top the list of governments responsible for jailing journalists, but the United States is responsible for incarcerating two journalists without charges, as part of the War on Terror. Bilal Hussein, a free-lance photographer for the Associated Press, has been held by US Security forces since April 12, 2006. Al-Jazeera cameraman Sami al-Haj was arrested December 15, 2001 by US forces in Afghanistan; he is currently held at Guantanamo Bay.

According to the 2006 Press Freedom Index compiled by another journalists’-rights group, Reporters Without Borders, the United States’ treatment of journalists placed it at 53rd on its press freedom list, tied with Botswana, Croatia and Tonga. China, Cuba and Eritrea ranked 163, 165 and 166 on the list, making them the countries with third, fifth and sixth most repressive records in the area of free expression. When the RSF began producing its list five years ago, the US rank was at 17.

Abi Wright, CPJ’s communications director, spoke to OJR about the new study of jailed journalists:

Wright: I think the rise in the number of Internet journalists on our prison list this year is startling, and reflective of trends that we’ve been following since 1997, when we documented the first jailing of an Internet writer. I think there’s two things going on. First of all, there are more people writing and doing journalism online. Secondly, the perennial offenders, China and Cuba , in particular, are just saying an increasing, or ever-present, I should say, intolerance towards reporting and dissent in any form, and online in particular.

OJR: You’ve pointed out that one in three of the journalists now in jail is an Internet blogger, web-based editor, or online reporter, and a large number of these people are not necessarily paid journalists, but citizen journalists?

Wright: Exactly. The nature varies from country to country. In countries like China, access to work as a journalist is very restricted. There’s party membership and all kinds of memberships required and it’s highly regulated and restricted. Writers and citizens have found the Internet to be one way that they can get information and transfer information. In Cuba, which is a slightly different example, a lot of journalists whose work ends up online, they actually telephone or transmit the information through different means, but it ends up being published online because they have no other way of just doing journalism there through official routes. So it’s reflective of the media environments in all of those countries.

OJR: Many of the people you are talking about are being held in secret locations and without charges. How do you get information about what’s happened to them?

Wright: Well, that is another sort of regrettable trend that we have documented, that 20 of the journalists on our imprisoned list this year, or 15 percent, are being held without charge. We have sources in countries like Eritrea, where we are able to verify information about journalists there. But it’s very difficult. We have reports that [several journalists held in Eritrea] may have been killed or may have died since they’ve been in prison. So, it’s challenging to get information about them, but it’s a real priority for us, absolutely. Journalists like [AP] photographer Bilal Hussein, and the cameraman for al-Jazeera, Sami al-Haj, we work closely with news organizations who have had employees detained to get information. And we also appeal directly to the US government about these cases.

OJR: Have international human rights organizations, the Red Cross, the UN or similar organizations been able to get to these people to verify their well-being?

Wright: In the case of Sami al-Haj, I know his lawyer has been in touch. He has a lawyer who is in communications with him. Communication with Bilal Hussein has been more problematic. He’s been held since April. We have called repeatedly on US authorities to make public the information that they allegedly have on these individuals and to either charge them, or release them. Different officials have assured us that they have evidence of some activity that could be seen as criminal, but we just don’t know what that is.

OJR: Leaders of the new Congress that will take office in January have promised new investigations into various aspects of the conduct of the War on Terror. Do you know whether the treatment of journalists will be part of that investigation?

Wright: I don’t know whether the treatment of journalists or international press freedom will be an issue for them, but I can tell you that during the confirmation hearings for [newly-confirmed US Defense] Secretary [Robert] Gates, Senator Warner of Virginia specifically asked about journalists’ safety, and mentioned CPJ. So we know that it is on lawmakers’ minds. And we are certainly doing everything we can to make sure that the situation for journalists, especially imprisoned journalists, in countries like China, Cuba, Eritrea, and also of course, those in US custody — that these cases are brought to the attention of lawmakers.

OJR: One case that CPJ has expressed concern about is the murder of Brad Will, an independent journalist who was gunned down October 27 while filming a protest by striking teachers in Oaxaca, Mexico . Some have called for the US to get involved in the investigation. What’s CPJ’s position?

Wright: My understanding is that the most recent development in that case has been very disturbing — the individuals who were arrested and charged with his murder have been set free.

OJR: Right.

Wright: We’ve been very active in Mexico, where there has been a string of murders, especially along the [US-Mexican] border area, where there’s known drug trafficking. We called on Mexico to appoint a special prosecutor for crimes against journalists. Under Pres. Vicente Fox, such a prosecutor was appointed, and I know that there is momentum to bring these crimes to a federal level, which would help expedite the prosecution of these cases. So from CPJ’s standpoint, we are pressuring Mexican authorities to bring those responsible for the murder of Brad Will to justice.

OJR: Any final thoughts that you hope readers will take away from this report.

Wright: I think it reflects a real change in the journalism landscape, when you have the second category of journalists behind bars being online journalists that shows a tremendous growth over the last decade. I think there’s no question. I think there’s no question, especially in Western democracies, but also in these other growing developing countries, that the Internet is a major conduit for information, and it will continue to be so. We will be fighting government attempts to crackdown on this as much as we can.

When the Internet was formed, the idea behind it was that it would be impossible to control and to censor. These governments are challenging that notion. I think it’s important for groups like CPJ and other members of the online community to remain vigilant in publicizing these attacks on journalists.