An innuendo-laden attack on Greenwald

Edward Jay Epstein has written an innuendo-laden column for The Wall Street Journal in which he strongly insinuates that filmmaker Laura Poitras and/or journalist/blogger/lawyer Glenn Greenwald of The Guardian criminally assisted Edward Snowden in leaking National Security Agency documents.

Epstein’s toxic brew of archly worded questions leads to the inescapable conclusion that he believes the two journalists ought to be investigated and possibly charged under the World War I-era Espionage Act.

Josh Stearns, who serves with Greenwald on the Freedom of the Press Foundation board, has some thoughts about journalism and the Espionage Act. He writes:

The First Amendment and press freedom questions that haunt the Espionage Act are particularly important right now. Changes in media and technology have put the tools of journalism and media making in the hands of more and more people, challenging old assumptions about who is a journalist and how journalism is done. Increasingly, independent journalists, nonprofit news outlets and citizens are playing critical roles in newsgathering and reporting on the most important issues of our time.

I don’t think Stearns gives sufficient weight to the idea that merely publishing leaked documents is, in fact, a violation of the law, and that investigative journalism depends on the hopeful notion that the government won’t use its authority. Otherwise, though, it’s a useful guide to the issues at stake.

More: Greenwald responds to the Epstein column in this Storify involving (mainly) Jeff Jarvis and Michael Wolff.

Edward Snowden and the peril facing journalism

Edward Snowden
Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

MuckRock.com and the potential power of crowdfunding

Screen Shot 2012-12-18 at 7.58.38 PMThis interview was previously published at the Nieman Journalism Lab.

The first time I heard of Michael Morisy and MuckRock.com was in 2010, after the site was targeted by a bureaucrat working for Massachusetts Governor Deval Patrick.

It seems that MuckRock, using the state’s open records law, had obtained information about how food stamps were being used in grocery stores. The data, which did not name any individual food-stamp recipients, had been lawfully requested and lawfully obtained. But that didn’t stop said bureaucrat from threatening Morisy and his tech partner, Mitchell Kotler, with fines and even imprisonment if they refused to remove the documents from their site.

They refused. And the bureaucrat said it had all been a mistake.

Now Morisy is preparing to expand MuckRock’s mission of filing freedom-of-information requests with various government agencies and posting them online for all to see. The just-launched Freedom of the Press Foundation has identified MuckRock as one of four news organizations that will benefit from its system of crowdsourced donations. The best-known of the four is WikiLeaks.

The foundation’s board is a who’s who of media activists, including Pentagon Papers whistleblower Daniel Ellsberg, Electronic Frontier Foundation co-founder John Perry Barlow, Josh Stearns of Free Press and the journalist Glenn Greenwald, now with the Guardian.

“The Freedom of the Press Foundation can be a first step away from the edge of a cliff,” writes Dan Gillmor, author of “We the Media” and “Mediactive.” “But it needs to be recognized and used by as many people as possible, as fast as possible. And journalists, in particular, need to offer their support in every way. This is ultimately about their future, whether they recognize it or not. But it’s more fundamentally about all of us.”

What follows is a lightly edited email interview I conducted with Morisy about MuckRock, the Freedom of the Press Foundation, and what comes next.

Q: Tell me a little bit about MuckRock and its origins.

A: I’d been really frustrated that we hadn’t seen much innovation in newsgathering generated by journalistic organizations. You see lots of innovations in how stories are told, but they’ve been generated by companies like Twitter, Facebook, and Instagram — all wonderful organizations, but ones which generate news as a byproduct, and where the journalistic function is by far secondary to business considerations. My co-founder and I wanted to create a startup where creating news was a core part of the business, and where the news was both user-generated and -directed as well as verified.

Since requests on MuckRock come from — and are paid for by — our users, we are able to align our business and editorial goals almost perfectly. We don’t sell advertising, we don’t put up paywalls. We just help people investigate the issues they want to, and then share those results with the world.

We’ve know been growing as a business and as an editorial operation for three years, with a part-time news editor and two fantastic interns.

Q: What sorts of projects are you involved in today?

A: Our biggest project to date is a partnership with the Electronic Frontier Foundation (EFF) called the Drone Census, which has broken a lot of major stories around the country. We let anyone submit an agency’s information and then we follow up with a public records request. So far we’ve submitted 263 requests to state, local, and federal agencies, the vast majority of which were suggested by the public. And it’s helped shed more light on a program that police departments and drone manufacturers are very purposefully keeping quiet.

We’ve also gotten to cover some really interesting local stories, such as getting the late Boston mayor Kevin White’s FBI file and taking an inside look at the timing of a drug raid, as well as national stories.

Q: What is the nature of your relationship with the Boston Globe?

A: MuckRock was invited to be part of the Globe Lab‘s incubator program a little over a year ago. We’ve received free office space and, most important, a good mailbox to receive the dozens of responses we get back every day. It’s also given us a chance to bounce ideas back and forth with their technology and editorial teams, and we’re in the early stages of a collaborative project with them.

They also recently launched The Hive, a section focused on startups in the Boston area. Given my experience running one and my editorial background, when they were looking for someone to manage and report for that section, I was a natural fit and thrilled to be invited to cover startups in the area. It’s a dream job, and it means I now have two desks, and often wear two hats inside the same building.

Q: How did you get involved in the Freedom of the Press Foundation?

A: Trevor Timm has been our main point of contact with the EFF working on the drone project, and he’s been absolutely great to work with. He reached out to us about a week ago and said that he was working on a new venture to help crowdfund investigative journalism projects, and we were honored to be thought of. It turns out he is the executive director of the Freedom of the Press Foundation, so we got lucky to be working with the right people.

Q: Do you have a goal for how much money you’re hoping to raise through the foundation? What kinds of projects would you like to fund if you’re successful?

A: We’re kind of going into this with an open mind and a hopeful heart. Any amount raised is greatly appreciated, but this will help jumpstart several new projects similar in size and scope to the drone effort, which has had an amazing response, including nods from the New York Times and many other outlets. It may also give us the flexibility to fund important stories that maybe are not as sexy. We were really interested in funding an investigation into MBTA price jumps for the disabled, for example, but our crowdfunding efforts on Spot.us are essentially dead on arrival. Having a reserve will allow us to take gambles on stories like that without having to choose between making rent and breaking news.

More on Olbermann, Greenwald and Stelter

Glenn Greenwald has posted a statement from MSNBC’s Keith Olbermann as well as his own withering response regarding the cease-fire between MSNBC and Fox News. Here’s what Olbermann told Greenwald:

I honor Mr. Greenwald’s insight into the coverage of GE/NewsCorp talks, and have found nothing materially factually inaccurate about it. Fox and NewsCorp have continued a strategy of threat and blackmail by Rupert Murdoch, Roger Ailes, and Bill O’Reilly since at least 2004. But no matter what might have been reported by others besides Mr. Greenwald, and no matter what might have been thought around this industry, there’s no “deal.” I would never consent, and, fortunately, MSNBC and NBC News would never ask me to.

Greenwald then writes:

I certainly believe that Olbermann is telling the truth when he says he was never a party to any deal and that nobody at GE or MSNBC asked him to consent. That’s because GE executives didn’t care in the least if Olbermann consented and didn’t need his consent. They weren’t requesting that Olbermann agree to anything, and nobody — including the NYT’s [Brian] Stelter — ever claimed that Olbermann had agreed to any deal. What actually happened is exactly what I wrote: GE executives issued an order that Olbermann must refrain from criticizing O’Reilly, and Olbermann complied with that edict. That is why he stopped mentioning O’Reilly as of June 1.

Once the NYT exposed this deal between GE and News Corp., MSNBC executives allowed Olbermann to attack O’Reilly last night because neither Olbermann nor MSNBC could afford to have it appear that their top journalist was being muzzled by GE.

Greenwald has some useful links, too, so please read the whole thing. And yes, Olbermann owes Stelter an on-air apology.

A cheap shot from Keith Olbermann

Keith Olbermann issued his declaration of independence last night. But in doing so, he smeared New York Times reporter Brian Stelter (photo), whose account of a peace settlement between Olbermann’s employer, MSNBC, and his nemesis Bill O’Reilly’s employer, Fox News, had created the need for Olbermann to renew his feud with O’Reilly in the first place.

Stelter reported last Friday that executives at both networks had moved to stop the on-air sniping between the two hosts. “Bill-O the Clown,” Olbermann’s pet nickname for O’Reilly, was frequently featured in his “Worst Persons in the World” segment. O’Reilly, for his part, had started taking aim at the corporate agenda of MSNBC’s owner, General Electric.

Although Stelter, not surprisingly, was forced to rely quite a bit on unnamed sources, he had an on-the-record comment from GE spokesman Gary Sheffer, who confirmed that a deal had been cut: “We all recognize that a certain level of civility needed to be introduced into the public discussion. We’re happy that has happened.”

Stelter also included a quote from Olbermann: “I am party to no deal.”

Seems pretty well nailed-down. Yet Olbermann, on last night’s “Countdown,” designated Stelter as his number-three villain in the “Worst Persons” segment, with O’Reilly coming in at number two. Among other things, Olbermann said:

Problem, Mr. Stelter asks me at least twice last week if there was such a deal, and I told him, on and off the record, there was not. And told him I rather obviously would have to be a party to such a deal. And I told him that not only wasn’t I, but I had not even been asked to be by my bosses. And he printed it anyway.

This is intellectually dishonest, as it implies that Stelter deliberately did not use Olbermann’s quote because it didn’t fit with what he wanted to write. In fact, Stelter did use it, and he placed it in context. It’s very clear from Stelter’s story that the deal had been cut by higher-ups, and that Olbermann might or might not go along.

Fox News owner Rupert Murdoch came in at number one for trying to muzzle O’Reilly. Hmmm … doesn’t that confirm that Stelter got it right?

Glenn Greenwald, who’s been blogging away at Salon ever since the Stelter story came out, criticized his ideological soulmate Olbermann last night, writing on Twitter, “Really surprised by the Olbermann denial – there’s lots and lots of evidence that the NYT’s description about what GE did is 100% accurate.”

Stelter himself took it in good humor after seeing his photo plastered on the “Worst Persons” segment. “Tonight: a reminder to take a new head shot,” he wrote on Twitter.

All in all, not a good moment for Olbermann. He may have reclaimed his independence. But he did so at the expense of sliming a journalist who’d broken an important, unflattering story about collusion by media moguls. At the very least, Olbermann ought to award himself the bronze.

Photo from Stelter’s Twitter feed.