Greenwald v. Keller: What They Missed and Why It Matters

In short, neither Keller’s nor Greenwald’s approach is the only consideration on the road to journalistic salvation. That being so, how should journalists go about spreading the truth to the citizenry in a way that does not alienate the very citizenry that journalism is intended to serve?

by Matthew L. Schafer

Bill Keller of New York Times fame and Glenn Greenwald of NSA Leaks fame recently faced off in the Times.  Others have summarized the exchange, so I will not do the same to any great extent.  Frankly, you should skip the summaries and read the actual exchange.

To understand my point here though, you will need to know the broad outlines of their back-and-forth, which can be succinctly summarized.  Keller believes, unsurprisingly, that journalists as part of their craft should objectively (or, if you prefer, impartially) report the news by not taking sides.

Greenwald, even more unsurprisingly, believes exactly the opposite.  He rebuffs Keller’s suggestion that the Times is impartial, alleging instead that it is nationalistic.  To Greenwald, the Times is no different than he is at the base level except to the extent that the Times took sides with the United States, instead of, like Greenwald, taking sides with the “truth.”

Both Keller and Greenwald argue that their brand of journalism is, ironically, “objectively” better than the other’s.  Keller thinks that his version is better because it gives the reader a chance to decide whether, for example, waterboarding is torture without feeding the reader that loaded word at the outset.  (Greenwald would just call it torture.)

Absent from Keller and Greenwald’s conversation, however, is any evidence that either approach actually helps readers. Isn’t that what we’re after at the end of the day? A more informed electorate? A citizenry that not only speaks truth to power but knows what it is they are speaking of in the first place?

Greenwald thinks his version better because it less impotent.  It does not present information in the he-said she-said manner that we have all become so accustom to.  Instead, it tests officials’ claims of truth in the fires of activism journalist, declaring at the end of the day whether those claims survived the forge or not.

Absent from Keller and Greenwald’s conversation, however, is any evidence that either approach actually helps readers.  Isn’t that what we’re after at the end of the day?  A more informed electorate?  A citizenry that not only speaks truth to power but knows what it is they are speaking of in the first place?  That is, what is truth and how should journalism trade in it?

In cases where journalists go after the truth and tell the reader that X is wrong but Y is right, there is little proof that the public is inclined to believe the journalist’s judgment as to the “ultimate truth.”  We know from media studies, for example, that when readers are provided with information that is contrary to their views, they actually claw their erroneous beliefs closer to them.  They hold on stronger and don’t let go.

We also know from media studies that readers are less likely to believe a news outlet that is foreign to them.  They are less likely to believe a news outlet that is adverse to them.  And, at the end of the day, what they do know is not that substantial and is mostly wrong.

Some of these may favor Keller’s approach (objectivity, for example, may be beneficial where the reader is unfamiliar with the source) and some may favor Greenwald’s (for example, his approach might be beneficial where someone agrees with him, but not otherwise.)

What Greenwald and Keller were really debating was what size of stick journalism should carry. They forgot though that it’s not only about the size of the stick but also who’s swinging, how sure they are in their own strength and ability, and whether they are aiming at the right target.

In short, neither Keller’s nor Greenwald’s approach is the only consideration on the road to journalistic salvation.  That being so, how should journalists go about spreading the truth to the citizenry in a way that does not alienate the very citizenry that journalism is intended to serve?

Of course, some stories will be easier to cover than others – some are more susceptible of being proven true or false.  For example, it is no doubt easier to prove that the NSA was, in fact, stealing information regarding French telephone calls than it is to prove that one domestic policy choice is necessarily better than the other.  Indeed, the NSA leaks are easily verified, which imbues credibility in the information itself.  (Greenwald has the documents after all, and they often accompany such stories as primary sources for the companion articles.)

But journalism does not equate only to publishing stories about leaked information, and leaked information is not always the information that the citizenry needs the most or that is most beneficial to the citizenry.  There are state house stories about budgets, Supreme Court stories about the extent of a woman’s right to choice, and international stories about whether certain treaties are in the nation’s best interests.

Greenwald’s view on journalism doesn’t graft as easily onto these types of stories as it does to stories about NSA leaks.  Indeed, in this context, the mantra of being critical to the government is rather less useful.  In fact, it provides almost no road signs for a journalist to follow if presented with a situation where reasonable people come to different conclusions based on the same available information.

It certainly provides absolutely no road signs for how a journalist can best interpret civic information for the public.  For example, even Greenwald’s activist/watchdog approach to journalism in the context of the NSA leaks, does not help us get at the deeper (and more important) civic question of whether, as a policy, we should be doing all that spying we know we are doing.

The point is that it is journalism’s job to keep an eye on the government – journalism a la Glenn Greenwald.  But that is just one part of journalism’s job.  On a broader level, journalism is a curator – and it is becoming more so every day.  As Brian Stelter pointed out several years ago but not too long ago to be obsolete:

The ‘news’ that is not fit to print gets through to people anyway these days, through 24-hour cable gasbags, partisan talk radio hosts and chain e-mails, blogs and Web sites . . . What readers need now . . . are honest referees who can help ordinary readers sort out fact from fiction.

Stelter is right, we need “honest referees.”  But what do we mean by that phrase?  That is what Keller and Greenwald should have been debating.  They were so focused on what type of journalism is the “better” type of journalism – activist journalism or activist-lite journalism, that they forgot the more interesting and important question: How can journalists be better stewards of the public’s trust?

I don’t have the answer, but whatever the answer is, certainly does not lie within the four corners of the now facile debate about objective journalism versus activist journalism.

Instead, each polemic will demand its own unique approach.  Some claims may not be readily provable as either true or false.  In such a circumstance the best journalism can do is debunk or debase those views that are surely outlandish, elevate those that wash the best with what we know at the time, and suggest to the reader that the “real” answer remains elusive.

On the other hand, some claims will be provable.  In those instances, I think both Keller and Greenwald would agree that reporters should debunk false claims.  It seems that they are unlikely to agree, however, as to how acerbic those debunkings should be.  And, really, there is probably merit to both opinions.

In both cases though, whether journalists are hotly antagonistic to the government seems to be the least important question.  Indeed, it is only important if journalists become so impotent that there is no watchdog press at all anymore.  We’re not quite there yet – contrary to what many would argue.

In short, the real debate about journalism isn’t whether journalists should be objective or opinionated; patriotic or insubordinate; apologetic or antagonistic.  Instead, the real debate is how journalists, recognizing the context of any given situation, can clearly and accurate deal in “truth” in such a way that all types of readers can walk away more knowledgeable about their world.

What Greenwald and Keller were really debating was what size of stick journalism should carry.  They forgot though that it’s not only about the size of the stick but also who’s swinging, how sure they are in their own strength and ability, and whether they are aiming at the right target.

Posted in Journalism Norms | Tagged , , , | 1 Comment

DoJ Takes Conflicting Positions in Congress: Continues to Deny FOIA Fee Waivers to Independent Journalists

by Matthew L. Schafer

The OPEN Government Act of 2007 was passed to ensure that “anyone who gathers information to inform the public, including freelance journalist and bloggers, may seek a fee waiver when they request information under FOIA.”

Under the Freedom of Information Act, anyone can request information from the government.  Depending on who requests the information, however, some requesters are given preferential treatment.  Such treatment comes in a variety of forms, one of the most important being a waiver of fees if one is a “representative of the news media” for searching for and reviewing documents.

That term, “representatives of the news media,” was given an extremely narrow construction since the late 1980s, which required that a journalist show that he or she was working for an entity that was organized to disseminate news.  As a result, Congress in 2007 attempted to broaden that definition to include all different types of journalists who are engaged in the function of gathering and disseminating news no matter if they have an institutional connection.

At the time, the Digital Media Law Project called the OPEN Government Act “striking” in that it would significantly “benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available to ‘representatives of the news media.’”

The Department of Justice was less than enthused by the Act.  In fact, the DoJ vigorously opposed the Act.  In the run up to its passage, the DoJ employed various adjectives like “grave,” “draconian,” and “misguided” to protest the Act’s provisions, including the provisions that were intended to give fee waivers to bloggers and independent journalists.

More specifically, the DoJ was concerned that discarding the institutional requirement would cause a flood of requesters to claim to be representatives of the news media because they had a some degree of demonstrable publication history or claimed that they intended to publish information resulting from the their FOIA request.

Moreover, the DoJ also worried that the Act, even where the requester showed no prior publication history, would require the DoJ to inquire into “the requestor’s stated intent at the time the request is made to distribute information to a reasonably broad audience,” which would eviscerate any limiting power the “representative of the news media” language once had.

In short, the DoJ was of the opinion that the Act expanded “the definition of ‘representative of the news media,’ and thereby exempts a larger class of requesters from the obligation to pay what can sometimes be quite significant fees assessed for searching for responsive documents.”

Despite the DoJ’s concerns, the Act passed.  Nonetheless the DoJ has continued to ignore the Act’s provisions.  In fact, the DoJ’s own Freedom of Information Act regulations still require that a requester show he or she is affiliated with a news organization to obtain a fee waiver.

Concerned by this fact, Reps. Darrell Issa and Elijah Cummings sent a letter to the DoJ, “[I]t is unknown whether agencies are complying with the Attorney General ‘s presumption of openness or the significant changes in fees and requester classes under the OPEN Government Act.”

The Representatives also noted, “[T]he OPEN Government Act broadens the types of requesters who may qualify for a fee waiver under FOIA.  Unfortunately, not all agencies appear to be complying with FOIA’s fee requirements.”

In an about-face that would make even the best-flipflopper blush, the DoJ, now under the Obama administration, responded that the Act does not mean what the Act actually says it does and does not even mean what the DoJ said it meant at the time the Act was passed.

“As an initial matter, we respectfully note that it is not technically correct that, as your letter suggests, the OPEN Government Act ‘broadens the type of requesters who may qualify for a fee waiver under the FOIA,’” the DoJ said in response to the Representatives.  “Rather, the OPEN Government Act codified the definition of ‘representative of the news media,’ which is a fee category.’”[1]

Thus, on the one hand, the DoJ explained on passage of the Act that it “exempt[ed] a larger class of requesters.”  On the other hand, the DoJ told Congress that the Act does not necessarily “broaden[] the type of requesters who may qualify.”

The fact of the matter – technicalities aside – is that nearly everyone agrees that the OPEN Government Act was intended to liberalize the fee waiver provisions relating to representatives of the news media.  Unfortunately, bloggers and independent journalists are still being denied such waivers.  This amounts to willful blindness.

The OPEN Government Act was passed with a lofty goal in mind – namely to “grant[] the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.”  Congress tried to achieve this goal by defining for itself who was a “representative of the news media.”  It is time for the DoJ recognize this by revising its own regulations and granting fee waivers to people engaged in the act of journalism under whatever banner.

[1] It could be possible that the DoJ is pointing out that the Act did not add another whole category of requesters. But, this is form over substance. The Act, as the DoJ has recognized elsewhere did expand the applicability of the fee waivers to a larger class of representatives of the news media, e.g., independent journalists.

Posted in Media Policy | Tagged , , , , , , | Leave a comment

Revisiting Smith v. Maryland, the Case that Allowed the Bulk Collection of America’s Phone Calls

by Matthew L. Schafer

Setting the Scene

On March 5, 1976, just a few months before the nation’s bicentennial, Michael Lee Smith robbed Patricia McDonough, and, as a result, he would fundamentally alter the Constitution of the nearly 200 year old America.  Indeed, three years after the robbery, the United States Supreme Court, in an appeal brought by Mr. Smith, would hold that citizens had no expectation of privacy in information that they give to third parties.

Mr. Smith found his way to the Supreme Court, because his otherwise anonymous robbery was foiled by his insistence on terrorizing his victim in the aftermath.  See when Mr. Smith robbed Ms. McDonough, he didn’t quit there.  Instead, he began sending her “threatening and obscene phone calls.”  He also began stalking Ms. McDonough at her home.

The police eventually caught a break when they recorded a license plate number off a 1975 Monte Carlo.  Mr. Smith owned a Monte Carlo.  And, with this evidence, the police tracked down his home address and had Mr. Smith’s telephone company place a “pen register” on Mr. Smith’s phone.  The police didn’t bother to get a warrant, even though courts were split as to whether the police needed one in such a case.

Just a day after the pen register was in place, it recorded a call from Mr. Smith’s home to Ms. McDonough’s.  Based on this evidence, the police executed a search warrant on Mr. Smith’s house.

When the government sought to introduce evidence of the search of the home, Mr. Smith objected on the basis that it was impermissibly seized as a result of the warrantless pen register.  His objection was denied, and he was convicted and sentenced to six years in jail.

The Oral Argument at the Supreme Court

Mr. Smith appealed his conviction all the way to the United States Supreme Court.  Just over three years after the police department ordered the phone company to place a pen register on Mr. Smith’s phone, the Supreme Court would hear his case.

Howard Cardin, a Baltimore attorney, argued the case for Mr. Smith.  Mr. Cardin’s tried to hit home his primary argument that the use of the pen register in this case required a warrant because it “was an action precipitated by the police department – not by the telephone company.”

“We compare it to the situation of a housekeeper coming into a hotel room.  On the one instance, if she is coming in performing her duties and comes across something that is one situation,” Mr. Cardin explained.

“On the other hand, if she is contacted by the police department and [told], ‘Why don’t you go into that room for us and see what is there because we suspect something is going on.’  Then she is operating as the agent of the police department and is not properly on the premises at that time,” he followed up.

Mr. Cardin’s oral argument marched on uneventfully for another twenty minutes.  In the end, the march was a futile one.  He had very few of the Justices lend a helping hand. Instead, Justices Rehnquist and Stevens put Mr. Cardin through the ringer, asking several credulous questions undercutting Mr. Cardin’s oral argument.  In short, the oral argument went poorly for Mr. Cardin and, of course, Mr. Smith.

Stephen Sachs, the Attorney General of Maryland at the time, had a much easier go of it in front of the Court.

“[The pen register] hears no sound; captures no words uttered into the mouthpiece . . . ; it captures no content; it achieves no communication . . . ; it doesn’t disclose if the call is completed; it doesn’t reveal who the caller is; it doesn’t say if the number is busy; it doesn’t say who the parties are; and it doesn’t tell the duration of the call,” Mr. Sachs began at the very outset in an attempt to limit the discussion.

In Mr. Cardin’s defense, Mr. Sachs arguably had better case law on his side.  Indeed, Mr. Sachs was able to rely on the Court’s earlier cases that explained that a citizen has no reasonable expectation of privacy in information that he gives to a third party – the “misplaced confidence” cases, as Mr. Sachs put it.

Mr. Sachs was put on the ropes for a moment, however, when Chief Justice Burger asserted that the misplaced confidence cases were all cases where the defendant was engaged in criminal activity.  In some prospective cases involving pen registers though, Chief Justice Burger explained that the activity might be lawful.

Undeterred, Mr. Sachs kept to criminal investigations using a pen register, “I’m saying, Your Honor, that it’s a risk [a person engaged in criminal activity takes] and its the kind of risk that this Court sanctioned in a great many cases.  This Court sanctioned the risk . . . that when you confide in a friend – a trusted confidant – you run the risk that person will later go to the authorities.”

Mr. Sachs then went on to argue that the case had really been decided already my the Court’s prior jurisprudence and, in any event, citizens actually had more privacy in their communications as a result of technological telephone advances.

And then, in a very ironic twist in hindsight, Mr. Sachs addressed concerns “injected” into the case by Mr. Cardin about electronic surveillance.

“The specter of electronic surveillance . . . seems to me misplaced because what we have here is a phone company mechanism that is very much a part of their normal and routine operations that people understand and know are likely to be . . . breached . . . by the phone company which may then go to lawful authorities.”

And with that, Mr. Sachs ended his argument and must have known, when he took his seat, that he had won the day.

The Supreme Court’s Opinion

The impact of Mr. Sach’s argument was immediately apparent in the majority opinion written by Justice Blackmun.  The resemblance was so striking that any closer and Justice Blackmun would have been plagiarizing the Attorney General’s argument.

“These devices do not hear sound. They disclose only the telephone numbers that have been dialed—a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers,” Justice Blackmun wrote, quoting an earlier opinion.

Justice Blackmun then turned to Mr. Cardin’s various arguments, discarding each in turn.  First, he rejected the idea “that people in general entertain any actual expectation of privacy in the numbers they dial.”  And, for that same reason, found that Mr. Smith also did not have such an expectation.

Second, he found that even if Mr. Smith did harbor that expectation, his doing so wasn’t objectively reasonable.  “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Justice Blackmun explained.

“This analysis dictates that petitioner can claim no legitimate expectation of privacy here,” Justice Blackmun continued.  “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.”

Just that quick, and Mr. Smith had lost his case.  Indeed, it only took the Court six paragraphs to dispense with Mr. Cardin’s arguments.  And, with that, the Court issued an opinion that it likely thought was relatively unimportant in the grand scheme of things.

The Third Party Doctrine Three Decades Later

Smith is still the law.  There is no contesting that.  (Although, there are convincing arguments to be had that the technological facts of Smith are so antiquated compared to today that it should be inapplicable – or, at least, less persuasive.)

Nonetheless, in a recent case, five Justices suggested, without holding, that information shared with third parties can still be private and still protected by the Fourth Amendment.  The Court did not go all the way though.  But, Justice Sotomayor, citing Smith offered a hopeful glimpse at the future:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

We shall see.

Posted in First Amendment, Privacy | Tagged , , | Leave a comment