FREE PRESS -- Exploiting a computer network's imperfect security, a hacker unlawfully gains access to private company messages and other documents and copies and forwards them to an Internet information site, where some are posted. The company seeks to find out who the hacker was. If the Internet site is found to be a journalistic publisher under California law, it may be able to ignore the company's subpoena, which would be unenforceable, notes attorney Jeffrey D. Neuburger in MediaShift.
In June of this year, the personal email account of a Twitter employee was accessed, apparently as a result of an insecure password. By Twitter's own account, the unauthorized access to that account was the first in a series of actions that ultimately gained the hacker (who calls himself "Hacker Croll") access to Twitter corporate documents that were maintained on Google Apps.
The documents ranged from executive meeting notes, partner agreements, financial projections and sensitive personal information such as credit card numbers, to more mundane items such as the meal preferences, calendars and phone logs of various Twitter employees.
The hacker eventually sent the documents to tech blog TechCrunch, which decided to post some but not all of them. They are online here, here and here. Soon, a debate raged about whether or not TechCrunch was right to post the documents.
The Twitter files in question aren't exactly the Pentagon Papers, but their dissemination -- and the resulting controversy -- may help clarify whether blogs and bloggers are journalists.
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In another case, Jason O'Grady, the operator of Powerpage.org, dug in his heels and refused to reveal the source of confidential information about a potential new Apple product release. Apple chose not to sue O'Grady for posting the information. Instead, it brought suit against unknown "John Doe" parties it suspected of leaking the information to O'Grady and served a subpoena on O'Grady seeking information that would lead to their identities. O'Grady claimed protection under the California press shield law and the First Amendment.
In a precedent-setting opinion, the California Court of Appeals ruled in O'Grady v. Superior Court that by engaging in "open and deliberate publication on a news-oriented website of news gathered for that purpose," O'Grady was a "publisher" and his "online news magazine" was a "publication" within the meaning of the California press shield law -- even though the site did not have a regular publication schedule. The court also found that the source of the information was protected from disclosure under the First Amendment, despite the fact that Apple claimed it was protected by trade secret law. The court ruled that there was a "legitimate public interest" in information about a potential new product release under the circumstances presented.
The O'Grady case is of particular interest with respect to the posting of the Twitter documents because TechCrunch is located in California, and any legal action to obtain information about the identity of "Hacker Croll" is likely to take place in a court that would apply California law.
The O'Grady opinion offers much to consider when debating whether TechCrunch's actions would fall under the protection of the California press shield law. Despite the broad language used in O'Grady to apply the California press shield law, and the resulting headlines claiming that the ruling extended First Amendment protection to a blogger, the California court expressly reserved any findings on that issue. It has yet to be resolved in any definitive way.
The court stated that while Powerpage.org arguably was a blog, the term had an "amorphous" and unsettled meaning. The court chose instead to treat the site as an "emagazine," "ezine" or "webzine" because of its "multiple staff members and other factors," including the non-reverse-chronological manner in which the site was laid out. In contrast, TechCrunch is avowedly a blog and its reverse chronological presentation of material falls within the commonly accepted definition of a blog.
The result is that if TechCrunch is served with a subpoena issued from a California court seeking information on Hacker Croll, the courts may be forced to rule on whether blogs and bloggers, at least some of them, are "press" and therefore entitled to the protection of the California shield law.
that case was a really complicated one.
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