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Our impoverished national conversation on guns appears to have a new casualty: public information.

The latest victim is the Bangor Daily News in Bangor, Me., whose request for the names of concealed gun permit holders – a public record in Maine – unleashed a firestorm. The paper withdrew its request.

The reason this sounds familiar, of course, is because of the controversy last December, when a White Plains, N.Y., newspaper (the Journal News) published the names and addresses of handgun permit holders. That newspaper, too, ended up succumbing to the outrage directed against it.

During the course of the latter controversy, the newspaper’s publisher, Janet Hasson, had this to say: “New York residents have the right to own guns with a permit and they also have a right to access public information.” Makes good sense to me. But not to the many public officials who, in each of these cases, rushed to make the information private.

Citizens who are reassured by this stampede to withhold information should consider: Secrecy is almost always the first instinct of politicians. That previous lawmakers have made a determination that the name and address of any handgun permit holder in New York State “shall be a public record” is evidence of an uncommonly enlightened understanding that certain kinds of information should be in the public domain. Why today’s readiness to deny that it is in the public interest for such information to be available? We seem to be in one of those recurring periods in our society when concerns about privacy regularly trump an allegiance to informed self-governance. Fear for loss of privacy is eminently reasonable. But we can’t afford to forget the cost of ignorance.

Nobody understood this better than Daniel Patrick Moynihan. As a New York senator, he made these remarks at a Hearing on Government Secrecy in 1997:

“Secrecy is the ultimate mode of regulation; the citizen does not even know that he or she is being regulated! It is a parallel regulatory regime with a far greater potential for damage if it malfunctions.”

The hearty appetite of leadership for secrecy is certainly exemplified by our current president. Barack Obama’s record on open information is shameful.

“Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it,” Katherine Meyer, a Washington lawyer who’s been filing FOIA cases since 1978, told POLITICO. “This administration is raising one barrier after another. … It’s gotten to the point where I’m stunned — I’m really stunned.”

So, who is out there to fight on the public’s behalf against the seduction of secrecy?

When I went to work for The Des Moines Register in 1981, we had three full-time media lawyers. They did all kinds of work for the company, but one task they undertook tirelessly was the fight for freedom of information across the state. As the leading member of the Iowa Freedom of Information Council, the Register worked in alliance with librarians, lawyers, educators and others to keep meetings open and records available to the public. This used to be true, in varying degrees, across the country. Now, a media lawyer in a newsroom is a rare thing indeed — and so is the assertive protection of public information. When people ask me what we are missing as newspapers relentlessly lose their footing, I think of many good answers. This may be the best.

We see the effect of this weakened commitment to fighting secrecy even at our strongest newspapers. One example lies in the long skirmish between The New York Times and Congress on President Obama’s terrorist “kill list” and our nation’s use of drones. The pattern is discouraging: The Times shares leaked information; Congress calls for an investigation. Unsettling as it is that public officials flail at the messenger instead of demanding more information, it’s troubling too to realize that the Times may be less vigorous than we’d hope in its fight to make information public. As Public Editor Margaret Sullivan wrote on Feb. 9:

“The real threat to national security is a government operating in secret and accountable to no one, with watchdogs that are too willing to muzzle themselves.

Top Times editors say that they are deeply committed to informing the public, but that they believe it’s only responsible to listen when government officials make a request. And, they emphasize, they often say no. Fair enough. But the bar should be set very high for agreeing to honor those requests. This one didn’t clear that bar.

What’s missing in the dark and ever-expanding world of drone warfare is a big helping of accountability, served up in the bright light of day.”

If journalists, however besieged and reduced in number, are essential as champions of open government, how did they stand on the question of newspapers seeking to bring gun-permit ownership to public light? The answer disturbed and surprised me. This comment from the Poynter Institute’s Al Tompkins was typical: “Just because information is public does not make it newsworthy. People own guns for a wide range of law-abiding reasons. If you are not breaking the law, there is no compelling reason to publish the data.”

But there are countless compelling reasons to publish data that have nothing to do with breaking the law. Some newspapers bravely (and wisely) publish the salaries of all public officials, as well as top salaries of executives of businesses in their communities. Some recently have published teachers’ classroom ratings. This kind of information is:

1. always terrifically well-read, and
2. guaranteed to provoke outrage.

“I’ll be robbed,” say the well-paid officials. “This isn’t a fair way to judge,” say the teachers. These predictable reactions do not negate the value of putting information into the hands of people to enable them to know themselves and their communities, to lead fuller lives and be better citizens.

When I was editor of The Des Moines Register, we were accustomed to publishing the names and addresses of those who had just given birth. Neighbors could learn that Jane and John down the street had a new baby girl, say, and drop by with a card. When a controversy arose over the kidnapping of a baby, health officials responded by demanding that the public records be closed down. It soon emerged that the few known kidnappings had been from hospitals, not from homes. The addresses remained unavailable.

When I first went to work at The New York Times, AIDS was not listed as a cause of death in obituaries. It was thought – as cancer had been long before it – to carry a stigma that would disgrace the dead. Thus readers were left scratching their heads over all the young men dying of “pneumonia.” Only when the accurate cause of death began to be used could New Yorkers understand that the faceless “plague” long so foreign-sounding to them was in fact the thing responsible for the death of that gifted artist they knew. Thus does accurate information shape public attitudes.

I used to give speeches with titles such as “What You Don’t Know WILL Hurt You.” Once, at Stanford, I spoke about the responsibility of the press to print the facts, no matter how painful that might be for some. I mentioned the need to cite suicide as the cause of death. A man scolded me during the Q-and-A, saying he was glad his local editor was more humane; he had simply ignored the cause of death in his son’s recent obituary. Afterward, a young woman came up to me and said: “I knew that boy. And when he died, we were all trying to figure out what had happened. What we learned instead was that adults don’t like to talk about painful things, and that you can’t count on newspapers to print the truth.”

So why didn’t journalists champion the side of openness in the post-Newtown Journal News story? I wondered this when I heard NPR Media Correspondent David Folkenflik say on KPCC in Los Angeles that the paper’s work was reminiscent of a “name and shame” effort by media outlets to identify sexual offenders. Following up with Folkenflik (who ended up adding me to an All Things Considered story on the matter that evening) and with others, I concluded that journalists had three primary critiques:

• Citizens should not be given data without context.
• Making the data public invaded the privacy of gun permit holders and made them feel unsafe.
• This was a crusade on behalf of gun control.

All of these seem misguided to me. Analysis can surely be valuable, but providing “granular” data without context is not necessarily irresponsible. This raw data from public records is surely something that most people would find interesting (and many apparently did – the newspaper said the data had been viewed nearly 1.2 million times before it was taken down). Extracting generic trends does not replace the value of neighborhood-by-neighborhood understanding of specific details. To think that only journalists can handle such information is not only elitist but sorely out of touch with the times.

What the enormous national response to the map revealed is that we don’t really have on the individual level much understanding at all about who does own guns. The Journal News map showed how ordinary it is. This new understanding could lead to a lot of different things. “Wow. I’m amazed how common this is among my neighbors, whom I know and respect. Should I reconsider my kneejerk reaction?” Or, “My neighbors have guns. Do I feel differently about my kids being in their house?” In either case, it removes blinders. This is the kind of thing that can change debates, putting information out there that helps people grapple with a situation instead of just grinding out the same old arguments.

As for the publication’s making people feel like criminals: In whose eyes? Somehow to publish that information, it was assumed, is to imply that gun owners are doing a bad thing or are dangerous. Why? I know that conservative websites charged that this was the newspaper’s intent, but why would a journalist have seen it that way? Indeed, why would gun permit holders themselves feel so outraged? Gun ownership is legal. Gun owners stress that it is desirable. People press for “open carry” laws. Why are some suddenly angry to have it known that they have a permit?

Finally, the notion that publishing this kind of information could only be a crusade for gun control confounds me. Why assume this? Who can predict how it will change the debate? It could lead to an utter “normalization” of gun ownership. It could lead to a fueling of gun-control efforts. Who is to say where more information – and a greater understanding of one’s surroundings – will lead? One study in the wake of the 2008 Memphis Commercial Appeal publication of zip codes of gun owners found that burglaries declined 18 percent in ZIP codes with the most concealed-carry permits.

Why would we (particularly journalists) assert that the paper has taken a stance by the mere act of publication? Why not say instead that it has trusted the public with public information? That it has made public information accessible to people who aren’t likely to make the effort to get it themselves? Why aren’t journalists pushing back against the notion that we must not trust people to know how to handle information given to them?

Some asserted that it was the timing of the publication at this charged moment that conveyed the implication of guilt, and they do have a point. So here’s my prescription: What this paper did is expose how little we all understand, on a human-to-human level, the reality of gun ownership. Bravo for that! Let every newspaper in the country publish records on gun permits to the extent available to them in their state. Don’t associate it with a madman’s act. Just put it out there because you know the public can benefit: These are the facts on the ground. Let’s see where they lead. (Unfortunately, I fear that few publishers have the courage to withstand the criticism. Which is why those who understand the power of public information must persevere in pointing out the reasons it is so essential, rather than joining the horde of critics.) PBS’s MediaShift has compiled an intriguing compendium of innovative coverage of the issue, relying on data and social media. Perhaps it could help inspire editors to find strength in numbers and join this national effort.

This project would change our dreary stuck-in-a-rut national conversation about guns. I don’t know how, but I guarantee it would change it. When we hide from facts, we make poor public policy – or avoid making any policy at all. The human aversion to difficult truths, the eagerness of newspaper editors and publishers to avoid infuriating people and the readiness of public officials to resort to secrecy make a fine recipe for ignorance.

How dispiriting then, that journalists – who by necessity must be on the forefront of defending open information, however uncomfortable a role that may be – have given up their taste for this fight. This speaks of a craft that is losing its bearings – another lamentable effect, perhaps, of the weakening of legacy media.

Privacy is an enormously worrisome issue. Context often makes data more useful. No individual newspaper’s project is beyond criticism. But we must not allow these truths to blind us to the importance of an accurate picture of our society. Many citizens cheer on the public officials who respond to controversy by taking information out of the public domain. But this is not “protecting” the public. It is blinding the public — helping the public keep its head in the sand.

Moynihan’s excellent book, “Secrecy: The American Experience,” concludes this way:

“A case can be made that secrecy is for losers, for people who don’t know how important information really is. The Soviet Union realized this too late. Openness is now a singular and singularly American advantage. We put it in peril by poking along in the mode of an age now past. It is time to dismantle government secrecy, this most pervasive of cold war era regulations. It is time to begin building the supports for the era of openness, which is already upon us.”

He wrote that in 1998. Fifteen years later, we are a long way from learning the lesson.

This ruling emerged when Crystal Cox, a blogger, was accused of defaming Obsidian Finance Group and its co-founder Kevin Padrick on her blog. She posted that Padrick acted criminally in a federal bankruptcy case. Padrick sued and the court found that Cox was not protected under the state’s media shield law.

This decision has implications for bloggers around the country.

Since there is no legal definition for “the press,” this court ruling is one of the first to explicitly say that bloggers are not the media. This comes only a few short months after a federal court ruled that anyone, including bloggers, may legally record public officials, including police officers. The ruling said:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
[Page 13 of the Slip Opinion from Glik v. Cuniffe]

While the Glik case was a victory for citizen journalism, the Oregon ruling is a failure to recognize the drastic changes occurring in the journalism world. Current technological advancements have made the line between citizen journalists and mainstream media harder to define. This is beneficial not only to anyone who produces news but also news consumers as well.

Many forget that when a newspaper goes under, it is not only those reporters who have lost their jobs that are affected. And when a local newspaper is forced to downsize their staff and product, there is a gaping hole in their news coverage that the consumer is losing. Entire communities are left without news coverage and left without access to vital information.

Stepping up to fill the void left when a local newspaper cuts back or closes are citizen journalists. They have proven that it no longer takes press credentials or a New York Times business card to break national news. Citizen journalists have captured government scandals and discovered injustice in their state capitols. They do the same job that the “mainstream reporters” are doing without either a pay check or fancy office.

Citizen journalists are providing a valuable service to their communities. They are relentlessly searching for the truth by preserving liberty and democracy. They are doing all of this without the respect that a protected member of the media has.

Instead of penalizing citizen journalists and failing to recognize their value to the changing media world, the courts should grant them journalistic protections. Those who value news should hope that the Oregon ruling is not followed in other states.

Jason Stverak is the President of the Franklin Center for Government and Public Integrity, a leading journalism non-profit organization dedicated to providing investigative reporters and non-profit organizations at the state and local level with training, expertise, and technical support. For more information on the Franklin Center please visit www.FranklinCenterHQ.org.

If you’re going to court, get a lawyer.

Crystal Cox is the Oregon blogger who got hit with a $2.5 million defamation judgment for a blog post wrote critical of Obsidian Financial Group. According to the Seattle Weekly, she was unable to use Oregon’s shield law to protect her sources for the post in question, because Oregon’s law does not explicitly cover online publication. Since she was otherwise unwilling to produce any sources to verify her piece, the judge sided with Obsidian and hit her with the multi-million dollar judgment.

Cox represented herself in the case, and that was her biggest mistake. Remember the old saying: “He who represents himself in court has a fool for a client.”

I don’t care what Cox’s motivation for writing was. (Heck, as I’ve written many times before, I wish journalists would get far more aggressive about taking a stand and going after the crooks and cons in their communities. Neutrality shouldn’t be a requirement for journalism.) Nor do I care whether Cox followed SPJ or J-school rules when writing her posts, either. That shouldn’t matter. There’s nothing in the First Amendment about being a J-school grad or SPJ member. Or even a newspaper or TV station employee. Freedom of speech applies to everyone.

In case you haven’t committed it to memory, here’s the First Amendment, again:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Obviously, though, we’ve got plenty of laws on the books abridging the freedom of speech and of the press – defamation laws being just a few of them. And ask the protestors at the Occupy encampments around the country about their right to peaceably assemble.

Fact is, the First Amendment, by itself, is pretty much meaningless today and is totally useless to anyone defending himself or herself in a court of law. The First Amendment is relevant only within the context of two centuries of case law that have refined its meaning within America’s criminal and civil justice systems.

That is why you need a lawyer when you go to court. Because only someone with extensive legal training is going to be able to navigate that immense body of case law in order to tailor those decisions to influence a judge or jury to rule in your favor. And if there’s no way to construct a winning case, a lawyer should have the experience to know how to craft you the best possible deal so that you can minimize the judgment or sentence you face.

Crystal Cox failed to use a lawyer. And that, more than anything else, is why she lost and got hit with that judgment.

So do you need a lawyer, right now? I’ve done plenty of work on my own that others hire lawyers to do. I’ve successfully filed my own trademark applications, signed basic, boilerplate advertising contracts and even sent out and responded to mild cease-and-desist letters. Friends who are attorneys have agreed with me – you don’t need a lawyer to handle every legal task you might face in life, provided you’re willing to do some research and get educated before you act.

But they also agree with me on this – if I’m in sniffing distance of a courtroom, I’m hiring a lawyer. Trademark applications are one thing – if I screw it up, I just get rejected and have to try again – but a court case can cost me my livelihood and my freedom. That’s nothing to address half-way.

Journalism schools require students to take classes in media law for a reason – so that they will have a basic familiarity with the case law that guides judges to make decisions in media suits. If you’re going to publish online, you need to have that knowledge, whether you went to J-school or not. (FWIW, I was a Political Science Law and Politics major as an undergraduate, so I’d taken enough Constitutional Law classes to be exempted from a media law class in graduate journalism school.)

So if you’re writing online and don’t know the basics of media law, yeah, it might be a good idea to ask a media lawyer out to lunch for a quick overview. Learn the names of some precedent cases and write them down for some future Google searches. Educate yourself. Ideally, you want to avoid any situation where you would need to hire an attorney.

But if you find yourself in one, you’d better go ahead and do that. If you’re going to court, get a lawyer.

The title lays out the problem: “Why parents help their children lie to Facebook about age: Unintended consequences of the ‘Children’s Online Privacy Protection Act’.” It’s by Danah Boyd, Eszter Hargittai, Jason Schultz, and John Palfrey and appears in First Monday, a peer-reviewed Internet journal from the University of Illinois-Chicago.

The study reports the results of a survey of 1,007 U.S. parents, age 26 and over, who have children between 10 and 14, and who do not work in the software industry. The survey found that 55 percent of those children had Facebook accounts by age 12.

This is in violation of Facebook’s COPPA-inspired Terms of Service, which prohibit anyone under age 13 from creating an account. COPPA makes it illegal for Web publishers to knowingly collect personally identifiable information from children under age 13. But that’s not what today’s kids want, I wrote in September:

“By effectively closing the social Web to preteens, COPPA has had the unintended consequence instead of simply encouraging kids to break the rules of the websites and services they wish to use – and by extension flouting the law’s purpose.”

The survey confirms that not only are children violating the spirit of COPPA by lying to register for online social networks, it suggests that the majority of children might be breaking the spirit of the law.

As I wrote before, what’s the point of keeping this element of a law that so many people are consciously breaking?

Remember, it’s the parents who are reporting their children’s Facebook activity in this survey, so presumably there might be some children who’ve registered for Facebook on the sly, too. The study survey not only found that the parents were aware of their children’s Facebook accounts, in the majority of cases they actually helped their children set up the accounts.

Nearly four out of five parents surveys said that there were situations where they would allow their children to create an account on an online service, knowing that their children were younger that the service’s age limit. Here’s the breakdown of why they would, according to the survey: (Respondents could select multiple reasons.)

Yes, for educational or school related purposes – 54%
Yes, but only under supervision – 50%
Yes, to communicate other family members – 48%
Yes, to communicate with me – 47%
Yes, to communicate with friends – 22%
Yes, because their classmates use the service – 9%

Only 22 percent of parents said that they would never knowingly allow their children to register for an online service in violation of the site’s age rules, according to the survey.

The data suggests that parents want to remain a strong influence, if not the focus, of their children’s online social network, with half the parents willing to approve their children’s participation under supervision and a near-majority wanting their children on Facebook in order to communicate with them and to enable the children to communicate with other family members.

The study’s authors suggested that parents aren’t seeing COPPA-inspired terms of service as legal requirements, but as suggestions – ones that can be overruled by their own parental authority. COPPA actually tried to give parents that authority, but the offline verification procedures that the law allowed are so burdensome for online publishers to support that most of them have decided simply not to allow registrations from kids under 13.

But those restrictions are there. And when parents allow their children to break those rules, they are, unfortunately, showing their children that it’s okay to break the rules of a community in order to get something (such as access) from that community. Ultimately, that’s not the healthy way to engage that a law such as COPPA should be encouraging.

COPPA does some great things for kids, helping to keep the Internet from becoming a commercial free-for-all, where Big Business hunts kids’ money and data freely. But why should children be the only ones to have their personal information and identity so well shielded by default?

The authors agree. They write:

“Our data suggest that … relying on age–based models is producing unintended consequences that undermine COPPA’s goals. In response, we propose that policy–makers shift away from privacy regulation models that are based on age or other demographic categories and, instead, develop universal privacy protections for online users.”

That ought to be the issue. Let’s ditch the parts of COPPA that parents don’t want – and don’t abide by – in favor of regulations that can better protect adults as well as kids from having their personal information and identities treated and traded as a business assets without their consent.

Kids want to engage. So do their parents. And parents want a role in helping teach their children how to engage socially online. Let’s let them do this – legally.

This case emerged from an incident where a private citizen used his personal cell phone to capture alleged police brutality.

Simon Glik could have walked away when he saw two police officers punching a man in the face. Instead, he pulled out his cellphone and started recording it. When Mr. Glik informed the police officers that he was recording audio, the officer arrested him for violating the state’s wiretap law. He also was charged with disturbing the peace and aiding the escape of a prisoner. The charges were dropped eventually because of lack of merit, but Mr. Glik filed a lawsuit claiming his free-speech rights had been violated.

This latest ruling is especially relevant to those who consider themselves citizen journalists. Before the court’s decision, members of the general public did not have the legal protection guaranteed by state shield laws enjoyed by credentialed journalists.

The court decision, in part, reads:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

Although this decision does not clarify the much-debated discussion on who counts as “the press,” it does state that freedom of the press and speech guaranteed in the First Amendment no longer just apply to salaried reporters.

The decision also acknowledges that current technological advancements have made the line between citizen journalists and the mainstream press more difficult to define. This is beneficial to individuals who produce news, as well as news consumers.

The ruling also makes it clear that those reporters who sit at the top newspapers around the nation do not have different rights then those bloggers who pull out their cell phones to record their stories. It seems that most have forgotten that even well-compensated reporters are in fact, citizen journalists, who receive a paycheck to keep the public informed.

Another object lost on the typical news consumers is that when a newspaper goes under, it is not only those reporters who have lost their jobs who are affected. Entire communities are left without news coverage and without access to vital information. Stepping up to fill the void left when a local newspaper cuts back or closes are citizen journalists. They have proved that it no longer takes press credentials or a New York Times business card to break national news. Citizen journalists have captured their local congressman in scandals and reported on the tax increase a state senator hoped no one would find out about. They do the same job that “mainstream reporters” are doing without either a paycheck or a fancy office.

Citizen journalists are doing their part to keep our government officials accountable to the people. They do this by attending a town-hall meeting and reporting on the events or taking out a cellphone and videotaping what is viewed as injustice by the police. They are preserving democracy and making their hometowns better places for their families and friends. It is a thankless service that our country cannot afford to dismiss.

By allowing citizens the protection to videotape government officials without fear of arrest and prosecution, this ruling is a victory to anyone who supports journalistic freedom. We welcome any and all citizen journalists who feel the need to take action to better their communities.

Jason Stverak is the President of the Franklin Center for Government and Public Integrity, a leading journalism non-profit organization. The Franklin Center is dedicated to providing investigative reporters and non-profit organizations at the state and local level with training, expertise, and technical support. For more information on the Franklin Center please visit www.FranklinCenterHQ.org.

The United States Federal Trade Commission is seeking public comment on amendments to its rule implementing the Children’s Online Privacy Protection Act [COPPA]. While, as a website publisher and a parent, I’d love to see some changes to COPPA, the FTC’s proposals don’t come close to level of reform this law needs.

If you’re not connected with the legal side of your news website, here’s a reminder about what COPPA is, from the FTC:

The Children’s Online Privacy Protection Act (COPPA) requires that operators of websites or online services directed to children under 13, or those that have actual knowledge that they are collecting personal information from children under 13, obtain verifiable consent from parents before collecting, using, or disclosing such information from children. The FTC’s Rule implementing the COPPA statute became effective in 2000.

Under FTC’s current rules for COPPA, website publishers must get offline consent from a parent before collecting any personal identification information from a visitor under age 13. Getting offline consent, such as a written or faxed letter, then merging it with an online record, has proven to be such a hassle that most websites now simple bar registration to anyone under age 13. That’s been the policy at my websites ever since COPPA went into effect, and it’s the policy at major social media sites such as Facebook.

The proposed amendments to the FTC’s COPPA rule are intended to make obtaining parental consent easier. But some of the FTC’s proposed “solutions” – including a live videoconference with a parent – won’t convince any website publishers to open registration to preteens. Like the old requirements, they’re just too labor-intensive for the highly automated world of online publishing.

As a parent, I understand the intention behind COPPA. Many parents don’t want their kids wandering the Internet unsupervised. But by effectively closing the social Web to preteens, COPPA has had the unintended consequence instead of simply encouraging kids to break the rules of the websites and services they wish to use – and by extension flouting the law’s purpose.

Back in 1998, when COPPA was passed by Congress, online communication wasn’t an essential part of daily life for most people. Over the past 13 years, though, we’ve raised a digital generation. Text messaging, apps and Facebook chatting have supplanted passed notes and phone calls as the preferred means of communication for millions of young people. I can’t remember the last time my teen daughter used her cell phone to make an actual call. (She’s had the phone for over a year and has yet to set up voicemail. I don’t think she even knows she could do that.) My son loves making movies, and talked me into creating a YouTube channel and Facebook fan page on my accounts so he could share his videos, to get around the fact that he couldn’t do so legally himself. Most kids wouldn’t bother with that step. They’d just pretend to be over 13 and set up the accounts themselves – leaving them without the data-tracking protections that COPPA’s designed to provide kids of their age.

Digital communication doesn’t just happen at age 13. Kids are itching to connect online as soon as they get their hands on a connected device. And with tablets such as the iPad enabling toddlers to function online, COPPA’s age limit is a full decade too late for some kids.

And that is helping to make COPPA the most-violated law since the speed limit and the drinking age.

FTC can change its rules as it wants. But if COPPA continues to encourage publishers to close digital connectivity to preteens, today’s digital generation will continue to lie about their ages to get around that legal roadblock. And that digital generation’s first lesson in digital literacy will continue to be: To connect with the world around you, you first must break the rules and flout the law.

That bothers me, not just as a parent, but as a citizen. Keeping laws on the books that the majority of people routinely violate (or laws that are rarely or inconsistently enforced) robs the law – as an institution – of its credibility. I don’t believe that we collectively should make a policy that encourages our children to break rules and ignore the law in order to participate fully in their society. If we want to protect preteens’ identity online – and I believe that we should – our laws should focus on that, instead of creating parental consent procedures so burdensome that they force publishers into the impossible task of trying to keep kids offline.

We might want to pretend that we can control children, but the fact remains that kids are their own beings. Short of requiring retina scans to log online (oh, heavens, I shouldn’t even suggest that in jest), we can’t firewall preteens from the Internet. So let’s quit pretending that we can, or even, should.

The FTC can’t fix COPPA on its own. We need Congress to step in and revise the law. Perhaps we should prohibit publishers and developers from referencing minors with their real names. Or, even better, we could prohibit direct unsolicited marketing to any minor, too – building on COPPA’s data protection and anti-tracking measures. But I’d rather see the FTC start a discussion on a new effort to help kids engage online in a positive manner than limiting the discussion to patching this broken aspect of COPPA.

But let’s not dismiss too quickly the federal government’s potential role in promoting good news coverage. Here are 10 steps that the US government *could* take that would significantly help entrepreneurs trying expand the news coverage of their local communities. And none of them involve direct subsidies or payments to the news industry.

1. Protect Net Neutrality

The Internet has nearly eliminated the barriers to entry for start-up publishers, enabling the explosion of new information sources across the Internet. If we need better sources of local information, the solution is not to allow telecom companies to extract tolls and demand payments from publishers to allow access from readers. That will merely reduce the number of voices available to consumers while further enriching telcos. Corporate media was cutting local news coverage before the Internet. Silencing websites won’t bring back that coverage. It will only reduce the possibility of finding replacements.

2. Expand broadband coverage

The smaller the market, the harder it becomes for a local publication to earn the income it needs to operate as a viable business. The digital divide makes small communities even smaller. Universal access to broadband would make every household part of its local digital marketplace, expanding opportunities for publishers and helping increase the possibility that a professional, responsible news publication in that community could be a financial success. The government can help expand broadband coverage not by caving to the demands of telecos (who are holding broadband expansion hostage to kill net neutrality, for example), but by laying its own fiber lines, establishing public WiFi networks, and by demanding more from companies bidding for broadcast spectrum.

3. Digitize public records and put them online in open formats

You might have noticed that we have millions of un- and underemployed workers in America today, many with digital skills. We also have decades of public records that remain available only in printed form, or in archaic electronic formats. Why not create a WPA-style computer workforce to digitize the nation’s public records and to publish them online, in open formats? Not only would this effort put many thousands of Americans to work, it would create a repository of more easily retrievable public information, allowing citizens (and reporters) easier access to our government.

4. Pass a national shield law, with explicit protection for online publishers

The First Amendment belongs to everyone, not just to print and broadcast reporters. Unfortunately, the shield laws that provide legislative support to the First Amendment vary from state to state, and some courts are unwilling to apply their protections to anyone other than old-school print and broadcast reporters. A federal shield law, with an explicit protection for online publishers, could help create a more hospitable legal environment for start-up news publishers.

5. Regulate transaction fees

Like many retailers, I lose a chunk of every payment made by my customers who use debit and credit cards. While it’s reasonable to expect to pay a bit for the convenience of these forms of payment, given the small number of megabanks that now control the credit card industry, we need government oversight to keep fees reasonable. Congress is taking steps to help this happen, which will reduce operating costs for all small businesses, including start-up news publishers.

6. Revisit COPPA

The Children’s Online Privacy Protection Act sounds like a worthy piece of legislation – no online service can collect personal information from someone under age 13 without that the explicit consent of that child’s parent or guardian (and an email or Web form consent doesn’t count). In practice today, however this act is violated so often as to make the drinking age look like a widely respected law. And it’s not the publishers undermining the law. It’s the kids. Many online community publishers spend way too much time finding and deleting user accounts from kids who lied about their age to register on a website. Creating digital media has become a normal part of life for kids under 13. It’s time to revisit this law and create a new solution that protects kids, parents and publishers. The law should mean something. When this many people violate it, the law is reduced to charade and farce.

7. Ditch the FTC’s “blogger endorsement” rule

This attempt to force truth in advertising is a confusing mess and its inconsistent enforcement has become a joke. If payola disclosure’s important, let Congress pass a law mandating it for everyone – bloggers, newspaper reporters, celebrities and anyone else who publishes. But good online publishers shouldn’t have to worry themselves with jumping through legal hoops that less considerate people get away with ignoring.

8. Model zoning reform

Continuing on the topic of widely ignored laws, zoning laws in many communities make running a business from your home (even a remotely hosted website) illegal. With telecommunity becoming more popular, the lines dividing home from work are becoming more blurred. While zoning remains a local issue, the federal government could encourage local communities to revisit their zoning regulations to encourage the development of online businesses. The first step would be to eliminate restrictions against running from one’s home office a business that employs no one from outside the family on site.

9. Remove payroll tax cap and reduce rate

My last two recommendations would help create a more viable environment for all job creation, not just in online news. Too many digital entrepreneurs are caught by surprise their first year, when they’re hit with the bill for the “self employment tax” – the share of Medicare and Social Security taxes typically paid by employers. When you’re self-employed, you’re on the hook for that share, as well as your regular share as an “employee.”

These so-called payroll taxes are regressive, as they are charged only on the first $106,800 of income. Eliminating the cap would raise additional money to fund these programs, potentially allowing an overall reduction in the payroll tax rate. That would reduce the self-employment tax, making digital entrepreneurship more attraction to journalists thinking about starting up, just trying to make a middle-class income for themselves and their family.

10. National health care

Even more than payroll taxes, the biggest non-income expense for many start-up businesses is health care. I personally know many journalists who’ve stuck with unsatisfying newsroom jobs rather than starting out on their own because of the health benefits. Ever-increasing health insurance premiums effectively serve as a private industry “tax” on job creation in the United States. A national health care plan that divorces health insurance from employment would encourage people and businesses to create jobs by eliminating health insurance as a direct expense of creating (or maintaining) a job. At the very least, opening Medicare to all who wanted to enroll and pay the premiums would create some much needed competition for companies such as Wellpoint, which enjoy near-monopolies in many communities on health policies for the self-employed.

The media shield bill that frequently seems poised to whisk through Congress, but has incurred several discomfiting delays, is a bad idea unless it gets one big change.

And isn’t it odd that the shield bill is revving up with its sprint-to-the-finish momentum, and the mainstream media would be gaining a significant new power, just when …

Just when these same media are declining precipitously in readership and finances, are at an all-time low in public believability as measured by the recent Pew research report, and have relatively few reporters left investigative or otherwise who would avail themselves of such a law.

Let’s call it for what it is, a power grab. As many states already have their own shield law, this is an attempt to cram one down the throats of those who have declined to grant the media such a privilege, or have done so in tepid fashion. If it passes as is, the press would have virtually unlimited power in reporting.

Back in the ’80s, I would have been a kneejerk and enthusiastic supporter of this bill. I was fortunate to be the leader of an investigative team at the Detroit News when it was a big, robust paper … the nation’s ninth largest daily, and the seventh largest Sunday edition. I oversaw half a dozen reporters and could tap more if needed. So from the stories we did, I think I’m well enough aware of the need for confidential sources and to protect them. Often, there’s no other way to expose wrongdoing.

That was then, now is now. Now I’ve been out of the journalism biz for eight years and have a hopefully broader view.

The big change I’d like to see is this: if the story goes to trial, the judge should have the discretion to disallow the confidentiality protection of the sources if the reporter has made any significant errors or if the sources’ information is wrong or unfair.

If the reporter has screwed up or been dishonest or been suckered, why should he/she be protected?

Without this change, the law is a bad idea for the public because the rights of the subjects of the stories and possibly others affected are totally ignored. And it might be a bad idea for the press itself because one can easily foresee it backfiring during a libel trial that centers on wrong and harmful information.

Imagine the press attorney smirkingly telling the jury that ha-ha, no we’re not going to tell you where this bad information came from because we don’t have to, and no you can’t hear from these sources themselves to make sure the reporters didn’t goof in claiming what was confided to them. Juries don’t like parties in a case with their noses in the air, or sensing that the deck has been stacked, and the reporter defendants might get an unpleasant surprise when they hear the verdict.

The glitches in the shield law’s consideration in recent years have centered on national security provisions and whether bloggers et al would be included for eligibility in this shielding. The various sides all had worthy considerations, and these aspects have been amply debated.

What’s being rushed through with no attention is the underlying basis of the bill … that reporters are perfect little angels who would never ever abuse the use of confidential sources, and that these sources are always totally honest and aboveboard with no hidden agenda.

Anyone who wishes to openly make that argument, be my guest.

The efficacy of the bill depends upon the public trusting reporters, yet the public doesn’t trust reporters.

More sophisticatedly, the argument is made that only the most experienced, the most talented, the most determined and the most ethical reporters would be doing the investigative stories that would be protected, and therefore the law is needed to safeguard these paragons.

So how do you explain what happened at the Los Angeles Times?

In 2008, the Times was forced to retract a story, and reporter Chuck Philips publicly apologized, after the investigative website Smoking Gun exposed the fact that a jailbird confidential source he had relied on had given him forged documents in the case of an attack on rap star Tupac Shakur in which music executive Sean “Diddy” Combs was implicated.

The story was flat-out wrong and big star Philips … why, he had won a Pulitzer Prize … had been duped like the rawest rookie.

Yet if Smoking Gun hadn’t been around to help, and if the federal shield bill had been in effect, even someone as powerful as Combs would have been helpless to win redress and clear his name, since he undoubtedly would have been classified as a public figure. He and any other innocent person in a similar situation would have virtually no recourse as the victim of a false, harmful story based on false, harmful information from a shielded confidential source.

In two editorials since then that … surprise, surprise … soundly endorsed the shield bill, the Times somehow “forgot” to mention this embarrassing but relevant incident. If the paper cannot be trusted in its explications concerning the bill, how can it be trusted in its operations with unnamed sources that same bill would protect?

Here are three other real-life media situations that if you extrapolate from them, show why the shield law as presently constituted isn’t good.

MICHIGAN FOOTBALL. Last fall, the Detroit Free Press ran a sports expose in which six unidentified current and former University of Michigan football players said they were forced to practice far more than NCAA rules allow.

Anonymous sources should be used only as a last resort … only when there is a significant story being told and there’s no other way to get the information.

To me, in this case it was justified. If the players had gone on the record, they would have been ostracized by their teammates, given verbal abuse by rabid fans for “hurting the team,” and had their lives made a living hell by the vengeful coaches. As a U of M grad, I thought it was an excellent story showing how a once high-class football program is being dragged down into the dirt by a new low-class coaching regime.

So that part’s OK. But suppose … not just in this story, but say a similar story at any paper … that the coach could come up with practice time logs showing he had done nothing wrong, or that the players had some sort of ulterior motive for complaining that wasn’t reported, or the reporter had misunderstood something … the shield law would unfairly protect the slacker reporter and punish the innocent coach.

NYT GETS MCCAIN. In what can only be termed a disgrace and abuse of confidential sources, the New York Times in February 2008 came out with a widely heralded story hinting that the married Sen. John McCain embarked on a romantic affair back in 1999 with lobbyist Vicki Iseman, 31 years younger.

Iseman responded by filing a $27 million libel lawsuit. It was subsequently settled out of court, and the Times … not saying whether it had paid her anything … crowed that it had won a big victory for freedom of the press.

But if the case had been pursued … the paper did not flatly come out and say the two had an affair. There was no straight factual substantiation whatsoever. Indeed, the paper printed denials by both parties … and then rattled on as if the denials didn’t matter, using innuendoes from anonymous sources. It is telling that the Times, in its flimsy response to the suit, said it had been reporting on the “perception” of questionable activity by McCain … i.e., not on any activity itself but the “perception” of it.

Ms. Iseman claimed the story led to “a corresponding deterioration of her interior mental, emotional and physical health.” If she had doctor bills to prove it or any other specific evidence of damage, and the Times couldn’t or wouldn’t produce the sources to justify the story, her lawyers would have had a field day.
Since the Times’ own ombudsman, Clark Hoyt, seemed dismayed by the nonexistent reporting … noting in his column that “although it raised one of the most toxic subjects in politics — sex — it offered readers no proof that McCain and (the woman) had a romance” … Iseman’s lawyers would have enjoyed asking him on the stand to tell the jury why it was justified for the sources to be shielded, and see what he was forced to say.

IT WAS ONLY A MURDER. The Alton, Ill., Telegraph got into a hot spot in 2008 when it received a subpoena from a grand jury demanding to know the identities of five anonymous responders on its website concerning a murder investigation. The state’s attorney believed two of the bloggers could help solve the murder case because from their comments, they seemed to know something about who did it.

The Telegraph, without uttering even a shred of sympathy for the murder victim’s family, or at least any sympathy that was visible in a standard Google search, said the bloggers were “sources” akin to someone making a telephone tip in the old days, and that such sources were protected by the state’s shield law, so sorry, we won’t help you. The paper may have neglected to use the phrase “chilling effect” in its brief; maybe in Alton, they don’t know it’s virtually mandatory that “chilling effect” be posited by the press as a dire warning if anyone dares challenge it legally.

Since then, a judge ruled the paper had to identify the two relevant bloggers but not the other three.

If a family member or good friend of yours was murdered, and an anonymous source in the media knew who did it, how would you feel if the paper not only didn’t care but also refused to let law enforcement interview this source to bring justice?

That’s power of the press, all right, to possibly keep a murderer from being prosecuted. Too much power for my taste.

P.S. Please, please don’t bother bringing up the supposed plight of the Northwestern University journalism students as a justification for a shield law.

Let’s see now, these are the students who gave a guy money some of which he used to buy cocaine after he obligingly furnished them the murder confession they wanted to hear in their quest to free a convicted defendant of that crime so they could get good grades, only afterward the gentleman inconveniently recanted his confession and the district attorney’s office has started investigating the students’ investigation, which is wrong wrong wrong because while the students can investigate anybody they want, nobody can investigate them because they’re so goshdarn special and if anyone tries, it’s wrong wrong wrong because it will have a chilling effect on reporters throughout the universe.

This isn’t a reason to have a shield law. It’s a reason to fix the one that’s being blasted through with too little discussion, too little attention.

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.

The Justice Department bought the industry line that it needs to be allowed to charge publishers more to serve their content faster than others, in order to raise money for capital expansion of the Internet. From the department’s press release:

“The Department also noted that differentiating service levels and pricing is a common and often efficient way of allocating scarce resources and satisfying consumer demand. The U.S. Postal Service, for example, allows consumers to send packages with a variety of different delivery guarantees and speeds, from bulk mail to overnight delivery. These differentiated services respond to market demand and expand consumer choice.”

Make no mistake: The battle over net neutrality is a battle over control of the content on the Internet. Those attacking net neutrality want to return to the pre-1995 era, when high distribution costs, such as the postal service’s differentiated service and pricing levels, created a formidable barrier to entry for publishers, preserving corporate control over almost all entertainment and news media.

Those supporting net neutrality, myself included, point to the explosion in people-powered media over the past decade, which was made possible by the unprecedented ability of individuals, anywhere, to publish to a global platform, on an equal footing with corporate media.

Yes, publishers who serve millions of readers each day ought to pay more to have their content on the Web than those who serve dozens. But they already do. The industry’s plan, however, would charge individual publishers different rates for bandwidth based on negotiated deals. AT&T, for example, could cut a deal with Fox News, serving its content to subscribers at a faster rate than that of the New York Times. And people-powered sites from DailyKos to Free Republic would be left with the digital scraps, their readers waiting while AT&T gives higher priority to requests for webpages from its corporate partners.

Here’s another analogy: Let’s contrast the Internet, with its current policy of net neutrality, against cell phone networks, where telecoms can decide which content to deliver. Which offers you more content, more powerful services and at lower cost? Which allows you, personally, to speak to more people around the world, at next to no cost?

It’s no contest. That’s why publishers and consumer advocates from across the ideological spectrum, from MoveOn to the Christian Coalition, have endorsed the continuation of net neutrality. The Internet is the ultimate manifestation of the Enlightenment ideal of a marketplace of ideas. In an era of newsroom cutbacks, it provides a ever-needed check on abuses of government and corporate power. Not to mention a place for people of all tastes, backgrounds and affinities to celebrate their culture. If the Bush administration is going to do the bidding of corporate America, defenders of the public interest must urge Congress to defend this larger coalition of public and private voices.

We would not have the diversity of voices and services available on the Web today were the Internet not developed under a policy of net neutrality. Which makes the words of one Justice Department official in endorsing net neutrality’s end so ironic.

“Consumers and the economy are benefitting from the innovative and dynamic nature of the Internet,” said Thomas O. Barnett, Assistant Attorney General in charge of the Department’s Antitrust Division. “Regulators should be careful not to impose regulations that could limit consumer choice and investment in broadband facilities.”

Precisely. Which is why the U.S. Federal government should leave the Internet the way it is, and not permit telecoms to decide which websites they will serve to us on their backbone networks.