Much praise was heaped upon the Department of Justice yesterday when it announced its new media policies, which shield journalists from being classified by the FBI as "co-conspirators" in criminal leak investigations, and make it much more difficult to obtain journalists' private records.
However, as emptywheel notes, the DOJ's guidelines intentionally exclude independent journalists and bloggers from its protections. In doing so, the DOJ has moved the U.S. government closer to establishing an official, state-sanctioned press.
The First Amendment was written, in part, to eliminate the kind of official press that parrots only the King’s sanctioned views. But with its revised “News Media Policies,” DOJ gets us closer to having just that, an official press.There is much to back up this punchy claim, for as Marcy (emptywheel) notes, the new protections outlined by the DOJ apply only to the "news media" – never once using the word 'journalist' or 'reporter.'
The reason? The DOJ actually excludes a whole class of independent journalists and bloggers from its definition of "news media" in its Domestic Investigation and Operations Guide.
Indeed, our legacy, corporate media is the only entity which seems to stand within the definition of "news media." Meaning: the DOJ will protect its corporate journalist class while continuing to leave independent journalists and bloggers (and even, perhaps, the likes of Glenn Greenwald) open to prosecution for investigative work.
Below are the DOJ's definitions for "news media," with emptywheel's comments introducing each entry:
DIOG does include online news in its definition of media.Now, the Privacy Protection Act should shield corporate journalists and independent journalists/bloggers alike from being subject to criminal charges when working with sources and doing investigative journalism.
“News media” includes persons and organizations that gather, report or publish news, whether through traditional means (e.g., newspapers, radio, magazines, news service) or the on-line or wireless equivalent. A “member of the media” is a person who gathers, reports, or publishes news through the news media.But then it goes on to exclude bloggers from those included in the term “news media.”
The definition does not, however, include a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).Then it goes onto lay out what I will call the “WikiLeaks exception.”
As the term is used in the DIOG, “news media” is not intended to include persons and entities that simply make information available. Instead, it is intended to apply to a person or entity that gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.
However, the DOJ is clear that, with regard to the PPA, it only considers the "news media" as being protected.
As emptywheel notes, that means she, and other independent journalists, could still be targeted in the government's definitional creation of an official "news media:"
I’m clearly covered by the PPA. But the FBI could easily decide to exclude me from this “news media” protection so as to be able to snoop into my work product.I'd like to extend the same congratulatory note.
Congratulations to the “members of the news media” who have been deemed the President’s official press. I hope you use your privileges wisely.
While the DOJ should be praised for establishing media protections, it's clear the application of such protections is only being extended to an official "news media."
The 'founding fathers' would not be proud.