SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their record, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

Become a member of Media Nation for just $5 a month.

Can community journalism be saved?

Ellen Clegg and I talked with Hillary Chabot of News at Northeastern about our book project, tentatively titled “What Works: The Future of Local News.”

How minority rule is turning the U.S. into an undemocratic country

Photo (cc) 2014 by the National Museum of American History

This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.

Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.

Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.

At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.

Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.

The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.

And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.

This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.

We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.

Minuteman Pride

Along the Minuteman Bikeway in Arlington Center.

Pulitzer notes: A big win for the Globe; plus, ownership matters, and recognizing Darnella Frazier’s courage

Journalism is a field overrun with prizes. But the Pulitzers still matter — and the recognition shown The Boston Globe on Friday was impressive.

As you no doubt have heard, five current and former Globe journalists won in the Investigative Reporting category “for reporting that uncovered a systematic failure by state governments to share information about dangerous truck drivers that could have kept them off the road, prompting immediate reforms.” That’s the first time the Globe has been recognized for its investigative work since it won the Public Service Award in 2003 for its coverage of the pedophile-priest crisis in the Catholic Church.

The Globe was also a finalist in Editorial Writing for its commentary on a zoning battle in Newton, and its sister publication Stat was a finalist in Breaking News for its coverage of COVID-19. One of the three Stat finalists was Sharon Begley, who died of lung cancer earlier this year.

In a video accompanying the Globe’s own coverage, editor Brian McGrory addressed a topic of vital importance — the role of a regional news organization in the powerful to account. Here’s part of what he said.

I was asked last night at a panel I was on about the lack of relevance, and how major metro newspapers are becoming decreasingly relevant in a really tough media age. And I thought about it for a minute, and I came to realize — not for the first time — I’ve been here 30-something years, and the Globe has never felt more relevant to the community than it does now. And all you have to do is look at the work we do day in and day out. The work that’s unfolding right now on the police department, on City Hall, on state government. Name a topic, and it’s every department firing on all cylinders.

Indeed, the Globe is driving the conversation on all of those stories, even amid fine work by other news organizations, including my friends at GBH News, WBUR, CommonWealth Magazine, The Bay State Banner, The Dorchester Reporter, DigBoston, local TV stations and others.

Ownership matters

Unfortunately, the Globe is unusual by the standards of 2021. Take a look at the list of Pulitzer winners. Overwhelmingly, the prizes went to news organizations with solid ownership. The Globe, of course, has been owned for the past seven-plus years by John Henry and Linda Pizzuti Henry, who have steered it to profitability and stability while maintaining the paper’s reporting capacity.

The Star Tribune of Minneapolis is owned by another wealthy business person, Glen Taylor, who has revived a paper that was on the ropes not too many years ago. The Tampa Bay Times is owned by the nonprofit Poynter Institute — a situation that hasn’t been entirely happy, but that has resulted in more robust coverage than if it were owned by a for-profit chain.

The Marshall Project is a well-funded nonprofit. The New York Times, though a publicly traded company, has been controlled by the Ochs-Sulzberger family since 1896. The Atlantic is largely owned by Laurene Powell Jobs, who inherited the late Steve Jobs’ fortune. BuzzFeed News is run as much for love as for profit.

I could go on, but you get the picture. All across the country, newsrooms at regional and local newspapers are being ravaged by corporate chains and hedge funds. The Pulitzers demonstrate, as I have said over and over, that it doesn’t have to be that way.

Speaking truth to power

There had been some buzz in recent weeks that a Pulitzer ought to be awarded to Darnella Frazier, the then-17-year-old who turned her smartphone camera toward George Floyd as he was being murdered by police officer Derek Chauvin.

The Pulitzer judges were thinking the same thing. Frazier was awarded a Special Citation “for courageously recording the murder of George Floyd, a video that spurred protests against police brutality around the world, highlighting the crucial role of citizens in journalists’ quest for truth and justice.”

Rarely has a Pulitzer been more deserved. But it will be for naught if that’s the end of it. Frazier’s work should inspire people everywhere to stand up for what is right. Without her bravery, Chauvin might still be on the beat, terrorizing the citizens of Minneapolis.

Mere months after his suspension, Jeffrey Toobin is back at CNN

Jeffrey Toobin. Photo (cc) 2017 by Gage Skidmore.

Jeffrey Toobin, who was suspended seven months ago after he was caught masturbating on a Zoom call, is back at CNN. Lukas I. Alpert reports for The Wall Street Journal that the legal analyst appeared on TV Thursday afternoon with anchor Alisyn Camerota. He called his behavior “deeply moronic and indefensible” but repeated his longstanding claim that it was accidental. “I didn’t think I was on the call,” he said. “I didn’t think other people could see me.”

Well, now. What are we to make of this? In addition to his CNN perch, Toobin was a high-profile writer for The New Yorker, and it was during a meeting with colleagues at the magazine that he decided to fondle himself. The New Yorker fired him. There have been no public signs that there’s been any thought given to reversing that decision.

Although Toobin’s quotes from his CNN appearance Thursday come across as contrite and sincere, he did say he thought his firing by The New Yorker was “excessive punishment,” which suggests that he still doesn’t get it.

I believe in second chances. The problem with Toobin is that his suspension — for truly appalling behavior — didn’t even last a year, and he’s picking up right where he left off rather than being asked to regain the viewers’ trust in a less visible spot. I will say that his commentary is first-rate.

Writing in today’s CNN “Reliable Sources” newsletter, Brian Stelter says, “There were a wide range of reactions to the news on Thursday afternoon. But by nightfall, I pretty much sensed that the social media conversation had moved on to other subjects.” That may be true, but I don’t think Stelter should take it as an indication that people are OK with it. Many, I’m sure, are disgusted.

Count me with Poynter media analyst Tom Jones, who writes, “Regardless of Toobin’s intentions and past history, this feels like something so egregious that it simply can’t be dismissed. Frankly, I’m stunned CNN brought him back.”

An argument for why the lab-leak theory of COVID’s origin remains unlikely

David Baltimore. Photo (cc) 2014 by Bob Paz.

Last week I wrote an analysis for GBH News on why the media dismissed the Wuhan lab-leak theory as the origin of COVID-19. I argued that the lab explanation got caught up in Donald Trump’s anti-Chinese racism and multifarious lies about the pandemic, compounded by some botched reporting of comments by Sen. Tom Cotton.

So I want to share with you two recent columns by Michael Hiltzik of the Los Angeles Times, someone whom I really respect. The Times has a tight paywall, but you should be able to access both of them by switching browsers after you read the first.

About a week ago Hiltzik examined the theory itself and concluded that, though it couldn’t be ruled out entirely, the scientific consensus remains that COVID almost certainly jumped from animals to humans outside the lab. He writes:

No one disputes that a lab leak is possible. Viruses have escaped from laboratories in the past, on occasion leading to human infection. But “zoonotic” transfers — that is, from animals to humans — are a much more common and well-documented pathway.

That’s why the virological community believes that it’s vastly more likely that COVID-19 spilled over from an animal host to humans.

Then, earlier this week, he reported that Nobel Prize-winning biologist David Baltimore was backing away from a quote he gave to former New York Times reporter Nicholas Wade in which he referred to genetic evidence that had been found as “the smoking gun for the origin of the virus.” Wade’s May 5 article in the Bulletin of the Atomic Scientists helped move the lab-leak theory to the center of the conversation. Hiltzik writes:

Baltimore told me by email that he made the statement to Wade, also by email, and granted him permission to use it in print. But he added that he “should have softened the phrase ‘smoking gun’ because I don’t believe that it proves the origin of the furin cleavage site but it does sound that way. I believe that the question of whether the sequence was put in naturally or by molecular manipulation is very hard to determine but I wouldn’t rule out either origin.” [Pardon me for not explaining “furin cleavage site,” but it’s related to the genetics of COVID.]

I think we have to regard both the lab-leak theory and animal-to-human transmission as possibilities, and we may never know the truth. But Hiltzik makes a powerful case that the animal-to-human explanation remains considerably more likely, and that it would be a mistake to regard the two explanations as equally plausible.

How a group of Denver area newspapers were saved from corporate ownership

Photo (cc) 2008 by Alyson Hurt

Just before Thanksgiving last year, Melissa Milios Davis was contacted by Jerry Healey, the co-owner — along with his wife, Ann Healey — of Colorado Community Media, which publishes 24 weekly and monthly newspapers in the Denver suburbs.

The Healeys were approaching retirement and looking to sell, and they were hoping to avoid turning over their life’s work to a corporate chain owner or a hedge fund. Milios Davis, vice president for strategic communications and informed communities at the Gates Family Foundation, serves on the executive committee of the Colorado Media Project, which has been seeking ways forward for local news since 2018.

That encounter, Milios Davis said at a recent webinar (you can watch it here; background information here), led to the sale last month of the Healeys’ newspapers to a new entity whose majority owner will be The Colorado Sun, a startup digital news operation that’s run as a public benefit corporation. That means the 24 papers, like the Sun, will not be organized to enrich its owners; any profits they earn will be rolled back into news coverage and other operations.

“These are still profit-making enterprises. It’s a business,” said Milios Davis, adding it would have been a “huge loss” if the papers had fallen into the wrong hands.

Also speaking at the webinar, organized by the Media Enterprise Design Lab at the University of Colorado Boulder, were Lillian Ruiz, co-founder and managing director of the National Trust for Local News, and Larry Ryckman, editor and co-founder of the Sun. The moderator was Nathan Schneider, an assistant professor of media studies at the university.

According a recent article about the deal by Corey Hutchins of Colorado College, the papers will be owned by the newly formed Colorado News Conservancy, which in turn is co-owned by the National Trust for Local News and the Sun. Hutchins reported that the 40 employees who worked for the Healeys, about half of them journalists, would keep their jobs.

The conservancy is currently seeking a publisher, Ruiz said at the webinar, and has invested a considerable amount of attention in the process. “We didn’t want to create just a replication of who have we had some handshakes with over a highball,” she said.

The Sun itself, which was founded after the meltdown of The Denver Post under the ownership of the hedge fund Alden Global Capital, is continuing to grow, said Ryckman — from a staff of about 10 when I wrote about the Sun for the Nieman Journalism Lab last fall to 15 today, with more on the way. He described the chance to save the community newspapers as something that was too important to pass up.

“At least on the Sun side, this came together pretty quickly,” he said. “This absolutely was a cause that was near and dear to our hearts…. We know who’s first in line when it comes to buying newspapers these days, and no one wants to see that happen.”

What helped jump-start the deal, said Milios Davis, was a study that the Colorado Media Project conducted several years ago in partnership with the Colorado Press Association. Among the findings: the number of journalists covering local news had been cut in half over the previous decade, in line with what was taking place nationally; and that of 151 newspapers they could identify, 93 were still locally owned.

“We saw on the horizon that a lot of these were … older owners” who lacked a succession plan, she said, explaining that there were 44 in that category. “We were looking at this as a tidal wave that would slowly crash on the shores,” which led to conversations about how to help them transition to new local ownership.

And then the Healeys came along.

One of the most important takeaways from what is happening in Colorado is that local news can still be run on a sustainable basis, and that corporate control and the gutting of newsrooms are not inevitable. As I wrote a few weeks ago, I would love to see the Colorado story replicated across the country. Ruiz said the exact model being used in Colorado might be unique to that area. But she added that her organization is looking at what might work in other parts of the country — especially in communities of color.

So how do we wrest control of local news away from chain owners? Report for America co-founder Steven Waldman, who’s been everywhere lately (it also turns out that he’s a co-founder of Ruiz’s organization), wrote an op-ed piece for the Los Angeles Times calling for tax breaks for newspaper owners who sell to nonprofits or public benefit corporations.

That would provide an incentive for the likes of Alden and Gannett to take their money and go home. I would add another incentive: tax penalties to be imposed on for-profit owners of newspaper chains of a certain size that are not owned locally.

Communities deserve a chance to take charge of their news and information. Three years after Alden all but destroyed The Denver Post, we’re starting to see a renaissance fueled by a new media venture and an old one that’s been given new life.

Become a member of Media Nation today.

Nikole Hannah-Jones and the challenges facing Black women in academia

More fallout from the fiasco at the University of North Carolina over New York Times journalist Nikole Hannah-Jones’ tenure case as The Washington Post reports on the challenges facing Black women in academia. Nick Anderson and Joe Heim write:

In Chapel Hill and beyond, many academics are backing Hannah-Jones in what has become a remarkable tenure showdown pending before the university’s board of trustees. The case has raised questions about the influence of politicians and donors on the faculty hiring process.

For Black female professors, long underrepresented among America’s tenured faculty, the stakes are deeply personal.

It’s time for the feds to stop hassling and spying on the press

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.

Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.

Read the rest at GBH News.