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
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.
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.