The USA PATRIOT Act: How Patriotic Is It?

By Jane E. Kirtley, Silha Professor and Director of the Silha Center

On October 26, 2001, President Bush signed into law the USA PATRIOT Act, a vast and complex statute which grants unprecedented surveillance authority to law enforcement. USA PATRIOT (an acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) makes significant changes to more than 15 existing federal statutes, expanding the powers of the government to monitor and intercept electronic communications through the use of wiretaps and pen registers, as well as increasing the scope of subpoenas and search warrants while limiting judicial review of them. It also expands surveillance authority under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §1861 et seq., which regulates the collection of information within the United States for counterintelligence purposes.

Many of these provisions were proposed and rejected by Congress during the Clinton administration, but in the wake of the September 11 attacks, most members of Congress put aside their scruples and voted in favor of the statute. Given the length and complexity of the legislation (342 pages) and the speed with which it was enacted, it is reasonable to ask how many of them actually read it first.

This summary is not a review of the entire USA PATRIOT Act. Its scope is limited to the sections dealing with surveillance and computer trespass, as well as a few provisions potentially affecting the exercise of First Amendment rights. Although nothing in the statute itself indicates that existing legislation, such as the federal Privacy Protection Act governing newsroom searches, or the Attorney General’s Guidelines on subpoenaing the news media, have been amended or rescinded by enactment of USA PATRIOT, the breadth and sweep of the new law suggests that its impact will be felt throughout American society, especially in the communications industry.

Wiretaps
Wiretap orders cannot be issued for the following new crimes: terrorism offenses (§ 201) and felony computer fraud and abuse (which means exceeding the authority of a computer used in interstate commerce and causing more than $5000 in damages, § 202). Formerly, the Electronic Communications Privacy Act governed law enforcement access to stored electronic communications (such as e-mail), but not stored wire communications (such as voice mail), which were covered by the wiretap statute, requiring an intercept order. Under USA PATRIOT, both are now covered by the same rule, and only a search warrant, not an intercept order, is required to retrieve voice mail and other stored wire communications (§ 209).

Search Warrants
Terrorist investigations are now subject to single-jurisdiction search warrants (§ 219). A warrant may be issued in any district where activities related to terrorism may have occurred, and may be executed to search any person or property regardless of location. This single-jurisdiction provision also applies to warrants to seize unopened e-mail less than 180 days old, which can be served on any ISP/OSP or telecommunications company anywhere, without identifying that company in the warrant itself (§ 220). Notice of a warrant to seize any wire or electronic communication, or for tangible property, may be delayed if a judge finds “reasonable cause” to believe that immediate notification would endanger life or physical safety, result in evidence tampering, or otherwise seriously jeopardize an investigation. Delay in notification may be extended for good cause. This is the so-called “sneak and peek” provision (§ 213).

Pen/Trap Orders
The prior law covered wire communications only, and was limited to phone numbers. USA PATRIOT now expressly includes dialing, routing, signaling and addressing information that identify content (such as what web sites someone visited), although it still excludes the “contents” of communications (not defined in the statute). Grounds for issuance include surveillance that is likely to uncover information “relevant to an ongoing investigation.” These orders, too, authorize installation anywhere within the United States, and may be served on any service provider whose assistance will facilitate execution of the order (§ 216). However, if the provider is not named in the order, the provider may seek certification from a U.S. attorney that the order in fact applies to it. There is no requirement that an ISP install or maintain equipment that would facilitate surveillance (§ 222); the government will presumably use its own technology, such as DSC 1000 (“CARNIVORE”) or Etherpeek, to collect information.

Subpoenas
In order to establish users’ identities, the new law amends the Electronic Communications Privacy Act to allow for subpoenas for stored information to be issued to ISP and other providers to obtain records of a customer’s name, address, session times and durations, temporarily assigned network addresses, means and source of payments (credit card or bank account numbers), local and long distance connection records, length of service (including start date) and types of services utilized (§ 210). Cable service providers are specifically covered by the new law if they provide telephony or Internet access services, but customer cable video viewing records (as long as the content is not streamed over the Internet) are still protected under the Cable Act (§ 211). USA PATRIOT expands ISPs’ right to “voluntarily” disclose content or non-content information if they have reason to believe an immediate danger of death or serious injury exists (§ 212). It does not create an affirmative obligation to monitor customer communications. ISPs are also allowed to disclose non-content information such as log-in records to protect their rights and property.

FISA
Foreign intelligence surveillance is subject to different standards than criminal investigations; for example, probable cause is not required. A special FISA court, consisting of 11 federal district judges (increased from seven by § 208), reviews applications for authorization of surveillance in secret; records and case files are sealed. Although historically FISA investigations have been kept legally distinct from criminal investigations, USA PATRIOT allows greater potential for disclosure and information sharing between investigatory entities (§ 203). Formerly, foreign intelligence gathering had to be the primary purpose of FISA surveillance; now, it need only be a “significant purpose” (§ 218). Under USA PATRIOT, FISA now has roving wiretap authority to intercept any telephone or computer that a target may use. Previously limited to orders requiring “specified person[s]” to assist with the interception (“specified persons” such as common carriers, landlords, custodians who were required to provide “information facilities, or technical assistance in such a manner as will protect its [the electronic surveillance’s] secrecy and produce a minimum of interference with the services [provided]”), these intercept orders no longer need to specify the person or entity required to assist. Roving wiretap authority can result in the monitoring of communications by others who use the equipment after the target does so (§ 206). The new law extends and expands the time period and authority for FISA search warrants (§ 207), pen/trap orders (which may involve a “United States person,” as long as the investigation is intended to protect against international terrorism and is not conducted solely upon the basis of First Amendment activities) (§ 214), and subpoenas for computers, business records, or similar items (§ 215). These provisions apply whether or not the entity served with an order to disclose these materials is the subject of the investigation. A particularly Draconian aspect of § 215 is that the FISA court effectively has no discretion to deny a request for a subpoena provided he/she finds that the application meets the requirements of § 215, which becomes the new Sections 501-503 of FISA. The order itself must not state that it was issued under § 215, and the person served with the order is forbidden to disclose that it was received. These provisions potentially raise troubling issues in the context of subpoenas and search warrants issued to the news media. It is unclear whether existing privileges and protections would apply, or even be taken into account by a FISA judge, or whether the “gag” imposed would be construed as constituting an unconstitutional prior restraint on a news media recipient of a FISA subpoena.

Computer Trespass
USA PATRIOT contains provisions relating to computer trespassing. “Computer trespassers” are individuals, including U.S. citizens, who gain access to a “protected” computer without authorization. This seems to be aimed at hacking and denial of service attacks, and although the term “authorization” is not defined, it apparently does not include individuals, such as subscribers, who have an existing contractual relationship giving them access to all or part of the computer. Surveillance and interception of the content of computer trespassers’ communications by any government employee (not only law enforcement) may be “authorized” by the owner or operator of a computer and provided there are reasonable grounds to believe that the content will be relevant to an investigation. Other persons’ communications may not be accessed (§ 217).

Amendments to Computer Fraud and Abuse Act (18 U.S.C. 1030)
The following is a “terrorist offense” under USA PATRIOT: an act calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, and that involves gaining access to restricted or classified information on protected computers with reason to believe the information could injure the United States, and willful communication of it to one not entitled to it (§§ 808, 814).

Providing Material Support for Terrorism
“Domestic terrorism” as defined in § 802, an amendment to 18 U.S.C. § 2331, includes criminal activities that are dangerous to human life and are intended to intimidate civilians, influence government policy by intimidation or coercion. It has been suggested that this could apply to acts of protest involving civil disobedience. Those who harbor terrorists (§ 803)(“Whoever harbors or conceals any person who he knows or has reasonable grounds to believe, has committed, or is about to commit” any one of the enumerated offenses), or provide them with material support (§ 805) are subject to severe penalties (§§ 809, 810, 813). The existing definition of “material support” in 18 U.S.C. 2332b is amended to now include providing “expert advice or assistance” as well as “training.” Arguably, this could extend to publication of information, as long as the facilitator knew that the information would be used to commit a terrorist offense.

Sunset Provisions
Although some provisions of USA PATRIOT “sunset” on December 31, 2005, others do not. Those that do not expire include §§ 203 (criminal investigative information), 208, 210, 211, 213, 216, 219. Those that do expire include §§ 201, 202, 203 (grand jury information), 206, 209, 212, 214, 215, 217, 218, and 220.

 Cameras Banned At Trial of Alleged Terrorist

By Elaine Hargrove-Simon

Even though alleged terrorist Zacarias Moussaoui has himself requested cameras at his conspiracy trial, U.S. District Court Judge Leonie Brinkema (E.D. Va.) on January 18, 2002 denied the motion of the Courtroom Television Network (Court TV) to broadcast the pretrial and trial proceedings.

Brinkema cited both federal and local rules (see Federal Rule of Criminal Procedure 53, and Local Rule 83.2 (a)) as grounds for her ruling. Both rules prohibit taking photographs in or transmitting radio and television broadcasts from the federal criminal courtrooms.

Joined by C-SPAN Networks, Court TV had filed the motion in the hopes that Brinkema would find that the rules violated the constitutional rights of the public as well as those of the broadcast media. Five other media companies, together with the Reporters Committee for Freedom of the Press, filed an amicus brief supporting some form of electronic access. Lee Levine, who delivered the 2001 Silha Lecture, argued on behalf of the media.

In addition to finding that the federal and local rules did not violate First Amendment rights, Brinkema stated that “any societal benefits from photographing and broadcasting these proceedings are heavily outweighed by the significant dangers worldwide broadcasting of this trial would pose to the orderly and secure administration of justice.”

Although the Supreme Court has never had occasion to consider the constitutionality of Federal Rule 53, Brinkema said that the Fifth, Sixth, Seventh and Eleventh Circuits have found Rule 53 to be constitutional. She concluded that the First Amendment does not give the media a right to televise, record or otherwise broadcast federal criminal trial proceedings. Although the public certainly has a right of access to observe trial proceedings, Brinkema agreed with the decision in Westmoreland v. Columbia Broadcasting Systems, Inc., (752 F.2d 16 (2nd Cir. 1984)), that “there is a long leap . . . between a public right under the First Amendment to attend and a public right to see a given trial televised.” She said that the public’s right of access is satisfied when some members of both the public and the media are able to attend the trial and report what they observed. An audio-visual feed will also be provided to a nearby courtroom, increasing seating capacity by 200. Half the seats will be available to the general public, and half to the media. Brinkema said that the constitutional requirements of openness and accessibility will have been met by these accommodations.

Attorneys for the media argued that prohibiting television cameras in the courtroom discriminated against the electronic media, likening the video camera to the sketch artist’s pencil and drawing pad or to a reporter’s pen and paper. But Brinkema said that print reporters are also required to leave behind their electronic devices, such as laptop computers and cell phones.

Brinkema further stated that the right of public access is itself not absolute, and that there are other rights and concerns to bear in mind. The defendant has a right to a fair trial; the secrecy of Grand Jury proceedings must be preserved; and the security of witnesses needs to be considered, as well as that of other trial participants. The integrity of the fact-finding process also must be maintained. Although media attorneys argued that televising the trial would enable the public at large to view the trial and thereby serve as a check on the judicial process, Brinkema maintained that opening the trial proceedings to a larger portion of the public would not enhance such judicial checks in proportion to the size of the audience observing it.

Brinkema agreed with the media that technology has made televising the trial less disruptive, because cameras are smaller and less obtrusive. But she added that while technology has been simplified, participants’ faces and testimony can still appear on television and the Internet and “be forever publicly known and available to anyone in the world.” Such exposure would be intimidating, and would hamper the proceedings. Furthermore, the images of law and court officials could jeopardize their personal safety, and would end the careers of those working undercover. Even though the media have offered to mask the faces of witnesses, Brinkema said that accidents happen, and that there might be moments when, due to simple human error, the masking might not occur, thus compromising the safety of the person. The risk was simply too great.

Finally, Brinkema said that she is reluctant to permit the broadcasting of proceedings because participants could be tempted to engage in showmanship. Moussaoui’s actions thus far in the proceedings, such as refusing to stand when the judge entered the courtroom, and refusing to file a plea, have already indicated that his behavior may be “unorthodox and unpredictable.”

On January 23, it was announced that Court TV would not appeal Brinkema’s decision but will instead support legislation currently in Congress that would allow cameras in federal courtrooms.

Appeals Court Rules Ban on Hyperlinks Constitutional

By Elaine Hargrove-Simon

On November 28, 2001, the U.S. Court of Appeals for the Second Circuit unanimously ruled in Universal City Studios v. Corley (273 F.3d 429 (2001)) that an injunction prohibiting web sites from publishing hyperlinks to another site which contains information on how to unlawfully copy DVDs and other digital material is constitutional.

In 1996, CSS, the Content Scrambled System, was developed to prevent the copying of movies that were available on DVDs. To further strengthen copyright protection in the digital age, Congress passed the Digital Millennium Copyright Act (DMCA; see 17 U.S.C. § 1202 et seq. (Supp. V 1999)) in 1998. But in 1999, a Norwegian teenager, Jon Johansen, created DeCSS, a computer program that is able to decrypt CSS. Eric C. Corley, who was also one of the defendants in Universal City Studios, Inc. v. Reimerdes, (111 F.Supp.2d 294 (S.D.N.Y. 2000)), publishes a magazine and maintains a web site geared toward computer scientists, computer buffs and others. He had posted a hyperlink to a copy of the DeCSS program on his web site. Eight movie studios sued Corley under the provisions of the DMCA in the Southern District of New York. The District Court entered a permanent injunction barring Corley from posting DeCSS on his web site or from knowingly linking via a hyperlink to any other web site containing DeCSS.

In his appeal to the Second Circuit in Universal City Studios v. Corley, Corley challenged the constitutionality of aspects of the DMCA. Corley contends the hyperlinks are “speech” entitled to First Amendment protection.

In Universal City Studios v. Reimerdes, Judge Lewis A. Kaplan of the District Court set a standard he characterized as “highly analogous” to the First Amendment fault standard for libelous speech, holding that an online publisher could be enjoined or held liable if it were proven that “those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating the technology.” An amicus curiae (friend of the court) brief, co-authored by the Silha Center in 2001, addressed First Amendment issues raised by censoring such hyperlinks.

Because the Internet is widely used as a source of information, hyperlinks have proved invaluable for supplying consumers with additional information on a story. The amicus brief argued that the defamation analogy is inapt and will chill speech. Moreover, the standard in defamation confines relief to damages, but the test in Reimerdes authorizes injunctions. The District Court’s test does not require that the publication be harmful to the subject’s reputation, and not merely untrue.

The restrictions would also prohibit journalists from presenting all they know and could report about an issue. It would place an undue burden on journalists to have to testify on each part of the test set forth by the standard set by the District Court on each hyperlink featured in a story, the amicus brief contended.

Corley stated that in posting links to sites that carry the DeCSS code, he was merely doing the same thing a newspaper does when it adds a photograph to a story. For his particular audience, including a link to a site that contained the code added validity to the story.

Second Circuit Judge Jon Newman, however, rejected these concerns, agreeing with Kaplan’s ruling that a hyperlink has both a speech as well as a non-speech component. Newman compared the contents of the sites bearing DeCSS to a slogan or “some other legend that qualified as a speech component” to marks on skeleton keys that could be used to gain access to restricted areas. The problem lies with the capacity of the code contained in the DeCSS program to infringe on copyright restrictions, and the hyperlink is immaterial, thus making the provisions in the DMCA “content neutral.”

Newman cited Turner Broadcasting, Inc. v. FCC (512 U.S. 662 (1994)), for the proposition that, as with other content-neutral regulations which have incidental effects on a speech component, “the regulation must serve a substantial governmental interest, the interest must be unrelated to the suppression of free speech, and the incidental restriction on speech must not burden substantially more speech than is necessary to further that interest,” in order to be constitutional.

Recognizing that restricting links to web sites that contain the DeCSS code may also restrict access to other information contained there and which is not prohibited by the DMCA, Newman suggested that such web sites simply delete DeCSS from their sites, leaving the other information intact. He further stated that the appellants “ignore the reality of the functional capacity of decryption computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted material by anyone anywhere in the world.”

Accordingly, because of the content-neutral wording in DMCA and the damage that could be done by DeCSS to the film industry when copies of DVDs are pirated, the Second Circuit court upheld the earlier decision in Reimerdes.

On January 14, 2002, Corley’s lawyers filed a petition for an en banc rehearing with the Second Circuit. The appellant claims that the Turner case was misapplied, and that the panel’s decision conflicts with the U.S. Supreme Court’s ruling in Reno v. ACLU (31 F.Supp. 2d 473, 483 (E.D. Pa.1999)), (holding that the Internet is a fully protected medium of speech) and Bartnicki v. Vopper (121 S. Ct. 1753 (2001)) (holding that “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party”).

As the Bulletin went to press, the Second Circuit had not yet acted upon the petition.

Digital Editing Company Creates Ethics Guidelines

By Bastiaan Vanacker

DigitalCustom, a production company in the business of custom editing digital photographs and still images, sponsored the first version (release version #1.0) of ethics guidelines for editing digital images on February 24, 2002. The guidelines reflect comments DigitalCustom received from its users and Web site visitors over the past year. The code is designed to help news, travel and nature editors apply ethical standards when editing digital images. Altering images in the darkroom has been part of photography since its inception, but digital technology has greatly increased the ease and possibilities of changing digital images. Guidelines like these aid editors in maintaining high standards of truth and accuracy while at the same time utilizing the full potential offered by digital technology.

The DigitalCustom code consists of six sections. The first section lists a number of “digital image editing procedures [which] are permitted to compensate for limitations and defects inherent in the digital photographic process, provided that the impact is to make the photograph more true-to-life,” such as dodging, color balancing and red eye elimination. In the next four sections the code stipulate permissible and impermissible procedures for news/editorial messages and for promotional images for news publications (such as publication covers and introductory areas of an article). In the final section, the code addresses the need to preserve source materials and how the guidelines could be implemented. The code focuses on specific technical considerations, and pays special attention to nature photography.

The drafters consider the guidelines to be a work in progress and they plan to release updated versions based on users’ feedback. The code is accessible online at http://www.digitalcustom.com/howto/mediaguidelines.htm.

Autopsy Records Laws Restricting Access

By Elaine Hargrove-Simon

A year after his death in the Daytona 500, the battle over the access to Dale Earnhardt’s autopsy photos continues. (See Summer 2001 Silha Bulletin, “New Florida Law Closes Door on Autopsy Photos.”) In a story dated January 10, the Associated Press reported that the newly enacted Florida law is hurting medical examiners and could hinder criminal investigations. As currently written, the law makes it a felony punishable by five years in prison and a $5,000 fine to view or copy autopsy photos without a court order. The law is being challenged by the Orlando Sentinel, the Gainesville Sun, the Ledger, the Sarasota Herald-Tribune, four newspapers owned by The New York Times Co., and the Tampa Tribune, together with its affiliate, WFLA-TV. A separate but related lawsuit is being fought by the University of Florida Alligator. The case has been set for arguments March 5 before Broward Circuit Judge Leroy Moe.

Following the precedent set by the restrictions imposed upon access to autopsy photos in Florida, other autopsy photos and records are being sealed around the country.

Golden, Colorado: Colorado District Court Judge R. Brooke Jackson ruled on January 2, 2002, that the autopsy records of Dylan Klebold, one of two student gunmen at Columbine High School, will remain closed at the request of his parents. The Rocky Mountain News had asked to review the autopsy records hoping that they might shed light on whether Klebold had killed himself. Although autopsy reports are not exempt under the Colorado Open Records Law, a trial court may find that they can be withheld if disclosure would cause “substantial injury to the public interest.” In his ruling, Jackson said that publication of details of Klebold’s autopsy would offend a significant portion of people living in the Denver area. According to an article in the January 4, 2002 Denver Post, the Jefferson County Sheriff’s office concluded that Klebold and Eric Harris, the other student gunman at Columbine, had committed a double suicide. However, Harris’ parents did not object to the release of their son’s autopsy report.

Covington, Georgia: Jana Crowe, whose son Jimmy was found dead in a hotel room in 1998, the victim of drugs, learned nine months later that his autopsy photos were part of a student’s science project and subsequently displayed at her high school’s science fair. Although the student had taped over Jimmy Crowe’s face in the photographs, many of his friends were able to recognize him. It turned out that a police officer assigned to investigate Crowe’s death had given the photos to his daughter, whose science project involved forensic science. Jana Crowe sued the officer. Superior Court Judge Sidney Nation noted that the officer’s actions were “immoral but not illegal,” according to an article that appeared October 11, 2001 in the Atlanta Journal and Constitution.

Crowe was surprised to learn that Georgia law allows autopsy photos to be disclosed to the public, with few exceptions, and that the surviving family members are not notified prior to release. Crowe contacted state lawmakers, hoping to find someone to sponsor a bill that will require anyone seeking autopsy photos to obtain permission from family members of the deceased before the photos are released. Crowe argues that autopsy photos and records ought to be given the kind of protection afforded to medical records, but concedes that such records should be available to journalists and investigators.

Milwaukee, Wisconsin: Legislators in Wisconsin, apparently reacting to the Florida law, have proposed a similar bill which would restrict access to autopsy reports, including photos. The bill, AB 621, was introduced November 26, 2001 and would prohibit the release of any autopsy record without permission from the deceased’s next of kin. Autopsy reports and photographs are currently public in that state.

In a story published November 18, 2001 in the Milwaukee Journal Sentinel, Jeff Hovind, publisher of the Waukesha Freeman and council chairman of the Wisconsin Freedom of Information Council, said that the organization will oppose any effort to restrict access to such records. Hovind was quoted as saying that, in his 24 years of working in the media, he has never known of a newspaper or television news operation that has published autopsy photos. “I think the Legislature is trying to cure an evil that doesn’t exist,” Hovind said.

Book on Torture Leads to Fines for French General

By Bastiaan Vanacker

Should all political speech be protected, even if it is used to justify the unjustifiable? In the United States, courts tend to answer this question in the affirmative, but in many other western countries, courts and governments limit freedom of expression when it is used to propagate unpopular ideas. A recent court case in France illustrates this alternative approach to freedom of speech.

On January 25, 2002, a French Court ordered an 83-year-old retired general to pay 7,500 Euro ($6,500), for justifying and condoning torture and executions during Algeria’s war of independence from France. In his memoirs, Special Services, Algeria 1955-57, General Aussaresses describes how French soldiers under his command tortured Algerian rebels during that conflict. When the book appeared in May 2001, it caused an immediate outcry in France, resulting in the general being stripped of military honors and being barred from wearing a uniform.

At the time of the incidents described, French authority in the region was challenged by a series of bloody terrorist attacks by the Front for National Liberation (NFL), shocking even those sympathetic to the independence movement. Aussaresses argued in his book that torture was the only means available to obtain necessary information and was justified under the circumstances: “The best way to make a terrorist talk when he refused to say what he knew was to torture him.” In another passage, Aussaresses wrote about the hundreds of freedom fighters he ordered to be summarily executed: “I was indifferent. They had to be killed, that’s all there is to it.”

Aussaresses could not be prosecuted for the acts themselves, because all French soldiers received amnesty for crimes committed during the Algerian war in 1968. Instead, he was charged with complicity in justifying war crimes, which is illegal in France. The case was brought against him by the International League Against Racism and Anti-Semitism (LICRA). During the criminal proceeding in November 2001, Aussaresses restated that what he had done was justified under the circumstances, that he took no pleasure in doing what he had done, and that his actions were approved by the French government and the justice minister at the time, François Mitterand. “I would do it [the torture and killings] again today if it were against Osama bin Laden,” he said. “These were not reprisals…. It was a case of stopping actions which were being prepared for deeds that would cause the deaths of French citizens in Algeria.”

Rather than focusing on Aussaresses’ descriptions of the events as such, Prosecutor Fabienne Goget built his case upon the “tone” of the book. The cold and detached voice, devoid of any regret and humanity, amounted to justification of the war crimes, according to Goget. The president and senior editor of Aussaresses’ publisher were also fined 15,000 Euro (roughly $13,000) each.

Aussaresses’ lawyers said that the general would appeal. The president of the publishing house was quoted as saying after the verdict: “Future generations will know the truth, thanks to Perrin [the publisher] and thanks to General Aussaresses.” On January 20, General Aussaresses appeared on CBS’ “60 Minutes,” as an expert on torture in a broadcast examining whether the torture of Taliban and Al Qaeda prisoners in order to gather information would be justified.

Vanessa Leggett Released from Jail

By Bastiaan Vanacker

O n January 4, 2002, aspiring writer Vanessa Leggett was freed after serving 168 days in the Federal Detention Center in Houston, Texas. Leggett had been jailed on contempt charges for refusing to testify and hand over her research on a 1997 Houston murder case to a grand jury. She contended that doing so would have revealed the identity of some sources who talked to her on the condition of anonymity (see Fall 2001 Bulletin). Leggett was set free because the term of the grand jury had expired. Previous attempts by her attorney Mike DeGeurin to obtain her release on bond had been unsuccessful.

Leggett could be jailed again if prosecutors ask a new grand jury to issue a subpoena. But she may be spared if the United States Supreme Court decides to hear her case. On December 31, days before Leggett was released, DeGeurin asked the Supreme Court to overturn the decision of the U.S. Court of Appeals for the Fifth Circuit, which held that no First Amendment privilege protects journalists from compelled testimony under these circumstances. DeGeurin argued that the decision in Branzburg v. Hayes (408 U.S. 665 (1972)) has been applied unevenly by federal district courts and needs to be clarified by the Supreme Court. In Branzburg, the high court stated that journalists are not immune from responding to a grand jury subpoena, but also left open the possibility of a constitutionally based privilege in other situations.

DeGeurin has argued that the Fifth Circuit interprets the reporter’s privilege more narrowly than most other circuits. This means that the “public’s freedom of the press is protected in various degrees depending upon which circuit you [sic] live in.” DeGeurin’s petition has asked the justices to clarify the scope of the reporter’s privilege.

At the time of writing, the petition was still pending, but DeGeurin hopes that the Supreme Court will stay the enforcement of any future contempt order so that Leggett will not return to jail while in the interim. Media law experts, however, consider the chance of the high court expanding confidentiality standards to be remote.

Because the Fifth Circuit ruled that reporter’s privilege did not apply in the case of grand jury subpoenas, Leggett’s status as a journalist is a moot point. But if a reporter’s privilege were to be recognized, the issue of whether Leggett qualifies as a reporter would become relevant again. The Justice Department did not seek the Attorney General’s approval before subpoenaing Leggett, as is required under existing guidelines when a reporter is subpoenaed, because it did not consider Leggett to be a journalist.

A new grand jury, impaneled on January 8, returned an indictment against Robert Angleton, a principal suspect in the case Leggett was researching. Prosecutors did not say whether Leggett would be called to testify during the trial, but DeGeurin said he anticipates this may happen. If so, DeGeurin said that Leggett would continue to protect her sources.

Internet Speech Threatened by Global Standards

By Elaine Hargrove-Simon

Potential restrictions on Internet news services were averted at UNESCO’s General Conference that took place October 15 – November 3, 2001. At the center of the conference discussion was UNESCO’s proposal that was slated to be presented at the World Communication Summit on the Information Society in December 2003, “Recommendation of the Promotion and Use of Multi-lingualism and Universal Access to Cyberspace.” The proposal could significantly affect the use and content of news on the Internet.

The World Press Freedom Committee (WPFC), an international organization that works to ensure freedom of the media, has been consulting with UNESCO throughout the process. WPFC is particularly concerned about one portion of the proposal, Article M27, which originally read: “Member States and international organizations should implement measures that encourage best information practices, ethical behaviour (sic) and respect for community standards and values regarding the activities and content of information producers, users, and service providers.”

Ronald Koven, the European Representative for the WPFC, wrote in a pre-conference statement dated October 12, 2001, that the use of the word ‘encouragement’ by a government or intergovernmental organization would “in a number of countries be tantamount to an official order.” He went on to quote the Sofia Declaration of 1997, which was endorsed by the General Conference, and reads, “Any attempts to draw up standards and guidelines should come from journalists themselves.” In an effort to resolve the situation, UNESCO Director General Koichiro Matsuura called for a return to the drawing board.

Officials in countries such as France and Iraq have made attempts to control Internet content. These officials voice fears that community standards might be violated if restrictions are not placed on web sites’ content. But Koven said such concerns may lead to censorship of the Internet internationally. Again citing the Sofia Declaration, Koven said, “The access and use of these new media should be afforded the same freedom of expression protections as traditional media.”

Outgoing General Conference President Jaroslava Moserova of the Czech Republic said, “UNESCO must, of course, try to do its utmost to ensure freedom of the press and of the media in general, for it is the view of many experts that hate campaigns mostly surface where the media are not independent.” Director General Matsuura also addressed the General Conference, saying, “[UNESCO’s founders] placed their faith in completely untrammeled freedom of expression and the free flow of information. [They] in effect, were convinced that in the long run such freedoms are the best defence (sic) against racism and prejudice … .”

Koven advocates that Article M27 be rewritten to read: “Best practices as well as voluntary, self-regulatory professional and ethical guidelines should be encouraged, without any obstacles to freedom of expression, regarding the activities and content of information producers, users, and service providers.” Adoption of the recommendation is likely take to place at UNESCO’s next General Conference in December 2003.

The WPFC has also voiced concern over a proposed charter consisting of rules and an ethics code that was drafted and then adopted by the Federal Council of the Russian Union of Journalists when they met in October 2001. The charter specifically addresses how a journalist should report terrorism. Among other things, the code requires that there be no direct contact between a journalist and a terrorist; that journalists coordinate their activities with “security organs;” that journalists must refuse to interview terrorists to avoid publicizing their demands; and that acts of cruelty and violence by terrorists should not be broadcast, in order to avoid offending the audience or the family and friends of victims of terrorists’ acts.

The WPFC has criticized these rules as violating a basic premise of journalism: the need to present all sides of a story as fully and as impartially as possible. The WPFC has also suggested that the charter might allow government officials to play an inappropriate role in covering news. WPFC officials expressed further concern that there is no clear definition of the word “terrorist ” set forth in the charter.

Because of the criticism the charter received from the WPFC and other professional media organizations, a larger consultation with the international media community has been recommended for the “Terrorism and the Media” conference in the Philippines in May, 2002. UNESCO will invite major media organizations to attend the conference, as well as the Federal Council of the Russian Union of Journalists. However, Waheed Khan, UNESCO’s Assistant Director General for Communication, issued a statement dated January 14, 2002, saying that the text of the charter cannot be endorsed as it “lends itself to interpretations which could result in curtailing press freedom.”

French Court’s Order Against Yahoo! Not Enforceable in United States

By Bastiaan Vanacker

AFrench court’s order seeking to force Yahoo! to either prevent its French users from viewing Nazi memorabilia or pay a fine of $13,000 a day is not enforceable in theUnited States, a federal judge in San Jose, CA ruled on November 7, 2001 (Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemetisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001). During 2000, the California-based company became entangled in a legal dispute with two French anti-racism groups over Nazi merchandise being auctioned by Yahoo! users. Despite the fact that the Yahoo! auction sites are hosted by servers located in the United States, a French judge ordered Yahoo! to block access to French users to the site or pay a hefty fine (see Spring 2001 Bulletin). After the ruling, Yahoo! complied with most of the court’s order. It posted warnings directed at French users, prohibited postings on Yahoo.fr that violate French law and revised its auction policy to prohibit individuals from auctioning any item that “promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan.” Some items, such as stamps and coins or expressive media such as books (for example Hitler’s Mein Kampf) which might fall under the French order, could still be freely auctioned. However, Yahoo! did not, as the order required, prevent access to other sites that may constitute an apology for Nazism, or to deny Nazi crimes. It argued that it could not comply with this aspect of the order without banning Nazi material from Yahoo.com altogether, thereby barring its American users from seeing it, which would infringe upon their First Amendment rights.

Yahoo! filed a complaint in federal District Court in San Jose, seeking a declaratory judgement that the French court’s orders are not enforceable under United States law. Judge Jeremy Fogel granted the motion, stating that the French order could not be enforced in the United States consistent with the First Amendment. The judge emphasized that this ruling was not about the morality of promoting the symbols or propaganda of Nazism, nor about the right of France or any other nation to determine its law and social policies. “[A]s a nation whose citizens suffered the effects of Nazism in ways that are incomprehensible to most Americans, France clearly has the right to enact and enforce laws such as those relied upon by the French Court here,” Fogel wrote. But he pointed out that “Internet users in the United States routinely engage in speech that violates, for example, China’s laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom’s restrictions on freedom of the press.”

The League Against Racism and Anti-Semitism and the Union of Jewish Students filed an appeal with the Ninth Circuit Court of Appeals. Ronald S. Katz, the attorney for the French organizations, said that because the judge had acknowledged that this case is unprecedented, “it is important that we get this decision to a higher court as soon as possible. My clients are willing to go the United States Supreme Court, if necessary, because they feel strongly that Yahoo! does not have the right to facilitate sales of Nazi memorabilia, which are illegal in France for French citizens in France.”

Civil liberties groups were pleased with the ruling. “While France or China or the Taliban have the power to regulate the speech of those within their borders, the court’s decision makes it very clear that these countries do not have the power to reach out and silence speech in the United States,” said Ann Brick, an attorney with the ACLU of Northern California. The ACLU, together with numerous other organizations, including the Society of Professional Journalists, had filed an amicus brief in the case. This case raises important issues about jurisdiction on the Internet, an issue that is gaining importance. In December 2001, the highest court in Germany ruled that German law applies even to foreigners who post content on the Web in other countries accessible from Germany. However, it is not clear how Germany plans to enforce its laws abroad. Katz argued that only an international treaty could provide a compromise. The Council of Europe, an intergovernmental organization counting more than forty European member states (not to be confused with the European Union) drafted a proposal that would criminalize acts of racist or xenophobic nature committed through computer networks. The draft was published on February 18, 2002 and is available online at http:www.coe.int/T/E/Communication_and_Research/Press/Themes_Files/Cybercrime/.

Internet companies reacted that it would be impossible to outlaw the publication of “hate speech” on the Internet and are concerned about liability issues. Civil liberties groups also expressed fears that this might bring more stringent anti-hate speech laws from continental Europe to the United Kingdom and the United States.

Minnesota Shield Law Facing Test

By Elaine Hargrove-Simon

Wally Wakefield, a Minnesota reporter, has been ordered by Ramsey County District Court Judge Dale B. Lindman to pay a $200 per day fine for refusing to identify confidential sources he used in a story he wrote five years ago. Wakefield’s article concerned the firing of Tartan High School’s football coach, Richard Weinberger, after Weinberger was accused of misconduct, including maltreatment of the team’s players. Wakefield’s article in the Maplewood Review contained several statements from unnamed school officials who claimed that Weinberger had intimidated the players.

Although Weinberger sued the school district and four school officials for defamation, he did not sue Wakefield. Instead, in August 2000, Wakefield was subpoenaed to compel him to reveal the identities of his confidential sources. After the trial court ordered him to turn over his sources, the Maplewood Review appealed to the Minnesota Court of Appeals, where the lower court’s decision was reversed and remanded. In August 2001, Lindman again ordered Wakefield to reveal his sources. When Wakefield still refused, Weinberger’s attorney asked Lindman to hold Wakefield in contempt. At a hearing on November 2, 2001, Lindman again asked Wakefield to reveal his sources. Wakefield, who is 71 years old and semi-retired, responded that although he had great respect for the court, he had to honor his promises to his sources. Mark Anfinson, legal counsel for Wakefield, said that a final decision in the case may not come for another six months.

Minnesota’s reporter’s shield law (the Minnesota Free Flow of Information Act, Minn. Stat. § 595.021 - § 595.025) generally protects reporters from revealing confidential sources. However, the law includes an exception for defamation cases in certain circumstances. Those include when it can be shown that the information is relevant to the defamation case, when it cannot be obtained through other means, but only when a journalist or a news organization is a defendant in the case.

The Reporters Committee for Freedom of the Press, together with the Society of Professional Journalists, the Minnesota Chapter of the Society of Professional Journalists and the Minnesota Newspaper Guild Typographical Union filed an amicus brief in the Court of Appeals in support of Wakefield. The amicus brief points out that the defamation exception to the Minnesota shield law was intended to apply only in those cases when the media representative subpoenaed is a party to the suit. However, when the media are not parties to the suit, the societal interest in holding the media accountable cannot outweigh the unreasonable burden subpoenas would place on reporters. Calling a broad interpretation of the exception to the Minnesota shield law “chilling,” the amicus brief urged a narrower reading of the Act to preserve the relationship between a journalist and his sources.

Tape Confiscated from Maplewood Journalists

By Bastiaan Vanacker

On October 26, 2001, the federal District Court in Minnesota rejected two Minnesota journalists’ lawsuits against the City of Maplewood and four police officers for ejecting them from a community banquet and confiscating their tape of the event on December 28, 1999.

The journalists, Kevin Berglund and Robert Zick, came to the banquet at the Maplewood Community Center, held in honor of three departing members of the City Council, to shoot footage for their public access cable television show “Inside/Insight News Hour.” They allege that they were initially given permission to film without paying the $15 entrance fee. When they were asked later by officers to pay the fee or leave, they refused to pay. A verbal and physical confrontation ensued between Berglund and four police officers, resulting in Berglund being arrested and charged with misdemeanor offenses of trespass, assault and disorderly conduct. Berglund was later acquitted at his criminal trial on May 25, 2000.

Berglund operated a video recorder throughout the incident, which he passed on to Zick when he was arrested. After Berglund was taken away, Zick was ordered by the officers to hand over the tape, which he refused to do. Officers restrained Zick and confiscated the tape without a warrant. They claimed that they needed the tape because it contained evidence of the crime, which they thought might be tampered with by Zick if they did not confiscate it. Two days after the incident, Berglund was given a copy of the tape, which he aired on his program on January 5, 2000.

On January 18, 2000 Berglund and Zick filed a suit against the officers and the City of Maplewood in federal District Court alleging violations of the federal Privacy Protection Act (42 U.S.C. § 2000aa), the Civil Rights Act (42 U.S.C. § 1983) and Minnesota’s Open Meeting Law (§ 471.705) and Free Flow of Information Act (§ 595.021-595.025). The defendants moved for and were granted summary judgment by District Judge David S. Doty.

The court ruled that the seizure of the video tape without a warrant, despite the protection afforded to First Amendment materials, was not unconstitutional because the officers could reasonably assume that the tape contained evidence of a crime and that there was a risk that this evidence might be destroyed by a third person (Zick). The plaintiffs’ claim that they had a privacy interest in the contents of the tape was also rejected because the events recorded occurred in a public place and the officers had already observed the events recorded on tape. Therefore, the officers’ viewing and copying the tape without a warrant was not deemed to be a violation of Zick’s constitutional rights. The claim that the defendants had violated the journalists’ First Amendment rights to gather and disseminate information by seizing the tape and ejecting them from the premises was rejected on the grounds that the journalists had refused to pay the entrance fee and had no right to the information gathered at the event.

The plaintiffs also failed to convince the court that their First Amendment rights were violated when the officers refused to return the videotape immediately, because a copy of the video was returned within two days. Claims of malicious prosecution and excessive force by the officers were rejected as well.

The court also ruled that the banquet did not violate Minnesota’s Open Meeting Law, since there was no evidence that members of the Maplewood City Council discussed issues relating to official business of the council. Finally, the court decided that Minnesota’s Free Flow of Information Act, or Shield law, did not apply in this case, because this act’s purpose is to ensure the confidential relationship between the news media and their sources, and that in this case the material did not reveal confidential sources.

Zick and Berglund have appealed to the U.S. Court of Appeals for the Eighth Circuit. In their brief for Robert Zick, John Borger and Paul Civello, attorneys with Faegre & Benson LLP, argued that the District Court made a clear error in ruling that the shield law did not apply, since the law was amended in 1998 to cover data that would not reveal a source. They also argue that no exigent circumstances justified the warrantless search and seizure of the tape. Zick had made no attempt and had no motive to destroy the tape, they contended, so there was no reason to think he would destroy it. They also point out that this ruling opens the door for potential cover-ups of any wrongdoing by the police, enabling police to confiscate all objective recordings of their conduct. As the Bulletin went to press, no date for the arguments had been set.

Silha Forum Focuses on Computers, the Constitution, Criminal Investigations

By Elaine Hargrove-Simon

The Silha Center’s Fall 2001 Forum, entitled “The Constitution, Criminal Investigations and Digital Media,” was timely following the events of September 11, 2001 and the passage of the USA PATRIOT Act. Forum speakers Stephen Cribari and Dick Reeve addressed privacy and the ways government can glean information about individuals and their activities from their computers.

As a defense attorney, a lecturer for the Georgetown University Institute on Foundations of American Law, a visiting professor at the University of Denver College of Law and a consultant for the FBI, Cribari is well acquainted with his topic. Focusing on privacy issues, he began his presentation with an overview of the Fourth Amendment and its provisions protecting citizens from unreasonable searches and seizures. Technology is pushing the limits of privacy in ways that the original framers of the Bill of Rights never could have imagined. In the Kyllo case (United States v. Kyllo, (258 F.3d 1004 (2001)), investigators used thermal imaging to measure the heat emanating from the walls of a house and to determine whether growth lamps were being used to cultivate marijuana within the house. This kind of technology did not exist at the time the Fourth Amendment was drafted. Cribari quoted Justice Scalia who said in Kyllo that it is necessary to put oneself in the minds and time of the original framers of the Constitution when determining the need for a search warrant. If a search warrant is required in that light, it should be required now despite the modern advances in investigations.

Cribari warned the audience that current technology allows investigators to obtain information from files, cookies and e-mails that are contained on computer drives, and that therefore it is unlikely individuals have a “reasonable expectation of privacy,” from anyone from hackers to law enforcement when it comes to surfing the Internet and communicating online.

Reeve is a prosecuting attorney, General Counsel for the Denver District Attorney’s Office and an adjunct professor at the University of Denver’s College of Law. As an internationally recognized specialist in computer forensic examination, Reeve focused on the uses of technology by law enforcement when searching for evidence. According to Reeve, items such as telephones, pagers, scanners, fax machines, answering machines, printers, digital cameras and laptops can be subject to forensic examinations.

Outlining the procedures used in a typical examination, Reeve said that law enforcement officials ordinarily begin by making an image of the hard drive in question, which will be accepted in court as being a duplicate of the original. The image is then restored to a clean hard drive and examined. Deleted material often remains on the hard drive. At other times, the subject of an investigation may have hidden information inside other files that may not initially seem pertinent to the investigation, forcing investigators to painstakingly comb through all the files on the hard drive. The biggest problem investigators face in the process, according to Reeve, is the extensive man-hours required to complete a thorough investigation.

Reeve said that the passage of the USA PATRIOT Act directly affects computer forensic examinations. Law enforcement officials are able to examine the contents of terrorists’ computers, and have the benefit of simplified procedures for observing Internet service provider records. By examining terrorists’ e-mail, investigators hope to find information about the planning of the September 11 attacks. In addition, by tracing the paths taken by e-mails, it is possible to determine the origin of the e-mails and thus the location of terrorists who sent them. However, a savvy computer user can change e-mail settings and throw investigators off-track.

The Forum was attended by School of Journalism and Mass Communications students and faculty, as well as faculty from the Carlson School of Management and the Law School.

Spring Silha Forum Will Feature MSNBC.com Ombudsman

The Spring Silha Forum, scheduled for April 10, 2002, will feature MSNBC.com ombudsman Dan Fisher. In his presentation entitled, “Ombudsmanship in the Digital Age: Life as the Peanut Butter in a Cyber Sandwich,” Fisher will discuss his work as a combination readers’ representative and internal critic of journalism for MSNBC.com, a news web site that is a joint venture of NBC and Microsoft, combining MSNBC TV and MSNBC on the Internet. The web site integrates television with interactive news and offers its users the opportunity to join in the kind of conversations normally found on talk radio. In addition to his work as ombudsman and critic for the web site, Fisher writes a twice-monthly column and responds directly to users’ concerns by e-mail.

Before joining MSNBC.com, Fisher worked for five years as a web site editor for Microsoft. The last four years of his employment with Microsoft were spent as editor in chief of what is now known as the MSN Money Web site, previously known as MS Investor and MS MoneyCentral.

Fisher’s 27-year career prior to his affiliation with Microsoft included stints as a reporter and editor with the Los Angeles Times. After receiving his degree in journalism from Marquette University in Milwaukee, Wisconsin, Fisher began his career in 1969 as an automotive writer. He went on to hold various positions including assistant business editor, editor of the World Report section, and editor of TimesLink, the first online venture of the LA Times in partnership with Prodigy. For nearly half of his time with the newspaper, he served as a foreign correspondent, acting as bureau chief in cities including Moscow, Warsaw, Jerusalem and London. Fisher covered many of the most significant events of the twentieth century, including the rise of the Polish Solidarity movement, the beginning of the Palestinian “intifada” against Israel, the evolution of glasnost and perestroika in the former Soviet Union, and the subsequent collapse of the Eastern bloc.

The Silha Forum begins at 2:30 pm in room 130 of Murphy Hall. The Forum is free and open to the public, and will be followed by a reception.