Currently, 40 states and the District of Columbia have shield laws. Shield laws are important because they safeguard the public’s right to know by protecting the rights of journalists and their use of confidential sources. However the states’ protection doesn’t apply when federal law is at issue. Press-citizen.com’s article entitled, Our View – Time for Congress To Pass a Federal Shield Law This Year, cites 2 significant examples: “And that means many important national stories — like that of the disgraceful treatment of wounded soldiers at the Army’s Walter Reed hospital or that of the abuse of prisoners at Iraq’s Abu Ghraib prison — leave reporters and editors at the mercy of prosecutors and judges who want the names of sources.”

Last month, U.S. Congressman Mike Pence reintroduced H.R., 2932, the Free Flow of Information Act of 2011. Also known as the Federal Media Shield Bill, this bill would establish limited federal protection from prosecutors and courts attempting to compel “covered” journalists to disclose confidential sources. The bill, authored by Pence six years ago, passed in the House of Representatives twice in 2007 and 2009; then died on the Senate floor. In 2009, while in the Senate, Barack Obama became the first U.S. president to endorse a federal shield law.

Opponents of the shield law argue that it will damage the federal government’s ability to protect national security. However, the Free Flow of Information Act of 2011 provides exceptions to the shield law for national security, the prevention of death or bodily harm, and information that is deemed essential in a criminal case or critical in a civil suit. Others argue that shield law’s exceptions negate the substance of the bill. Additionally they argue that the shield law is too weak, as evidenced by its narrow definition of “covered” journalists. The bill defines a “covered” journalist as someone who regularly reports and writes for a substantial portion of the person’s livelihood or for substantial financial gain. Thus, excluding a majority of bloggers, whom may be in a better position to report, but do not write for financial gain. Still, the Free Flow of Information Act of 2011 is better than the absence of a federal shield law. In a speech to the National Conference of Editorial Writers Convention, Pence asserted that “Compelling reporters to testify, and in particular, compelling them to reveal the identity of their confidential sources, is a detriment to the public interest. Without the promise of confidentiality, many important conduits of information about our government will be shut down.”

Please read Jason M. Shepard’s article, Bloggers after the Shield: Defining Journalism in Privilege Law, to learn more about a federal shield law and its applicability to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.

Over the past month the Gizmodo-iPhone scandal has raised many questions about privacy protections of Internet journalist. (Please see my articles, Shield Laws Fail Internet Journalists and Gizmodo’s iPhone Saga Continues to learn more about the facts and legal issues of this case.)

Last week the plot thickened when, according to Antone Gonsalves’s article, Apple Claims Gizmodo iPhone Photos ‘Immensely Damaging’, Apple lawyer, George Riley told police that the publication of the photos and descriptions of the device’s features by Gizmodo were “immensely damaging” and could hurt sales. Specifically, Riley was concerned that Gizmodo’s story would persuade people to postpone purchasing a current iPhone until the new iPhone 4G is released, “thereby hurting overall sales and negatively effecting Apple’s earnings.” Although Riley could not provide an estimate of Apple’s loss, he believes it is “huge.”

Could the announcement of Apple’s anticipated losses be prefacing a civil suit for damages against Gizmodo’s deep-pocketed owner, Gawker Media? Although no suit is currently pending, many feel it is to be expected. However, it is unlikely that Apple will be able to show actual or anticipated damages because as one anonymous blog commenter wrote, “You’d have to live under a rock to not know there’s a new iPhone coming.” That is, even before the Gizmodo iPhone scandal people were aware that a new iPhone was in production and going to be released. It would be very hard and maybe impossible to prove that any losses Apple experiences are due to Gizmodo and not the preexisting iPhone 4G hype. In fact, it is possible that all this free publicity will increase Apple’s sales.

Although recently-released court documents indicate that Gizmodo’s editor, Jason Chen was considered a suspect in three felonies, including the purchase or receipt of stolen property, theft of trade secrets, and malicious damage to another person’s property valued at over $400, no charges have been filed against him or any of the participants in this case.

Please check back for the latest news in the Gizmodo v Apple smackdown.

In my April 27 blog, Shield Laws Fail Internet Journalists, I wrote about fellow blogger Jason Chen, a writer and editor for gizmodo.com, and his recent legal troubles.  Apparently Chen acquired an unreleased iPhone 4G after Gizmodo paid $5,000 to an unnamed person who claimed they found the phone at a local bar. Even though Chen is a full-time journalist who works from home, a search warrant allowed police to seize computers, cameras, hard drives, business cards and computer servers from his home in an attempt to find, “document, images, and/or notations pertaining to the sale and/or purchase of the stolen iPhone prototype and/or transfer of trade secret information pertaining to the iPhone prototype.”

The finder of the iPhone has now been identified as twenty-one-year-old Redwood City, California, resident Brian J. Hogan, according to Ben Patterson author of Man Who Found — and Sold — the Missing iPhone Unmasked. Initial reports that said Hogan tried repeatedly to call Apple to return the phone were false.  Additionally, owners of the bar where the iPhone was lost say that Hogan never bothered to call them about the lost phone either. Now Hogan has lawyered up, for fear that he will be arrested for theft.

But isn’t this an issue for the civil, rather than criminal courts?  Here Section 512.010 of California’s Code of Civil Procedure applies. This section covers California’s civil cause of action called, replevin, which is intended to restore property to its rightful party in the action. Please read Tanya Roth’s article, Core Prinicple: How Apple Gets Its iPhone Back to learn more about Apple’s possible replevin action.

Though the search warrant was approved April 10, Chen has still not been charged with any crime. According to Paterson’s article, “law-enforcement officials have reportedly said they’ll hold off on searching the computers and servers seized from Chen’s house until they decide whether California’s shield law for journalists applies to him.” Still, damage has been done. Chen’s rights were violated by the unlawful search warrant. Wouldn’t it have been more appropriate for “law enforcement officials” to decide this issue before a search warrant was issued and Chen’s rights were violated?

Please see my other articles about whether shield laws protect internet journalist:

• New Jersey Courts Weaken New Jersey’s Shield Law Statute
• Internet Anonymity

Last week I wrote a blog entitled, Internet Anonymity in which I concluded that, “U.S. civil courts are not as willing as Canadian civil courts to order disclosures” of anonymous comments on newspapers’ blogs. Well, it appears I spoke too soon.  On April 22, a New Jersey appellate court ruled in, Too Much Media, LLC v Hale, that defendant, Shellee Hale, was not entitled to protection under New Jersey’s Shield Law because she was not working as a journalist or a reporter when she posted comments about the plaintiff, Too Much Media LLC (TTM).

In that case, Hale, a mother of five from Washington State, asserted she was acting as a journalist when she posted negative comments on Oprano.com, a website self-described as the “Wall Street Journal for the online adult entertainment industry,” about TMM, a Freehold company that provides software to Internet pornography providers. Specifically, Hale accused TMM of fraud, “illegal and unethical use of technology,” and profiting from the theft of e-mail addresses stolen by hackers in a 2007 security breach, violating New Jersey’s Identity Theft Protection Act. Also, Hale posted that ‘[the company's owners] may threaten your life if you report any of the specifics.” TMM sued for defamation.

In response, Hale filed a motion claiming that she was covered by the New Jersey Shield Law Statute, which protects journalists from revealing their sources.  In a certification accompanying the motion, Hale testified that she reports on Internet security issues on several blogs, electronic bulletin boards and websites, and that she has developed relationships with confidential sources as part of her reporting and investigative processes.  Moreover, she argued that her comments were made in the course of investigating criminal activity in the Internet pornogrphy industry and were meant, “to inform the public on scams, fraud and technological issues.” When the Ocean County Superior Court denied the motion, finding Hale failed to show she was connected with news media as the statute requires, Hale appealed. Then on April 22, the Appeals Court upheld the Trial Court ruling, finding that the “defendant’s comments amount to no more than a letter to the editor.”  The Court reasoned that, “Although any attempt at defining ‘news’ would ultimately prove illusory, some delimiting standards must pertain lest anyone with a webpage or who posts materials on the internet would qualify.”

The judges then outlined specific reasons why Hale didn’t qualify as a journalist and thereby provided some delimiting standards for future cases: “Defendant has produced no credentials or proof of affiliation with any recognized news entity, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest.” Thus, it seems that this case has actually changed the way the New Jersey Shield Law should be interpreted as this is the first time said law has required that journalists have credentials or even work for established news outlets to qualify for protection. In fact, the statute seems much more inclusive than the court’s very narrow interpretation.  If this ruling is a sign of things to come, it is likely that many “reporters” will lose the necessary protection shield laws once afforded them.

For more information about this case please read the following articles:

• No Reporter Shield for Mere Blogger, N.J. Appeals Court Says by Mary Pat Gallagher
• N.J. Court Rules Blogger is Not Protected Under Shield Law in Porn Company Defamation Case, by MaryAnne Spoto
• Jersey Court Rules Blogger Not Protected By Shield Law, Must Divulge Source, by Wendy Davis