How do we regulate speech in a democracy? When do words make you a criminal, conspirator, aider and abetter, and when do they make you a journalist, reporter, whistle-blower, free citizen?
Soon we will know whether Karl Rove, Lewis "Scooter" Libby or any other White House figure will face charges for revealing the name of a CIA operative as part of a campaign to silence her husband, a vocal critic of the war in Iraq.
But as many major scandals do, the "Plamegate" affair has sprouted hydra-heads of side scandals -- and none so interesting as the question of the role journalists have played in outing Valerie Plame.
The New York Times reporter Judith Miller controversially went to jail for her refusal to reveal that she talked to Libby about Plame's husband. And if any reporter made an agreement with a White House staff member to be the outlet for illegally revealing Plame's name, the special prosecutor could indict that journalist for conspiring to commit a crime, or name the reporter as an unindicted co-conspirator.
The treatment of journalists connected to Plamegate should send a cold chill through internet publishers of any stripe, and worry those of us intent on fully transporting democratic principles to the online world.
Many observers feel like the special prosecutor got it wrong when he sent Miller to jail, and Congress has seen fit to introduce a bill meant to shield the news media from federal subpoenas for the identity of confidential sources. (Currently, the Justice Department relies on internal guidelines to inform prosecutorial discretion in subpoenaing reporters.) But Congress isn't likely to extend the narrow legal protections that mainstream journalists want to bloggers, message-board posters and mailing-list participants.
And in the absence of such protections, the judicial system's short history of regulating internet speech provides little cause for optimism.
In 2002, the Justice Department unsuccessfully prosecuted a man who demonstrated to his former employer that it was running an unencrypted wireless network that allowed public access to confidential court documents. That same year, in United States v. McDanel, the Justice Department prosecuted a man (my client) for e-mailing customers of a web-based messaging service to inform them that the service was insecure.
In 2003, Diebold Election Systems used the notice and takedown procedures of the Digital Millennium Copyright Act to get a two-week suspension on the publication of embarrassing e-mails that showed the company knew its e-voting machines were unreliable. Last year, Apple Computer subpoenaed three bloggers to learn their confidential source for news about the computer company's latest product under development. And just this summer, Cisco Systems sued security researcher Michael Lynn (also my client) for disclosing that older versions of the company's routers had exploitable security flaws.
These cases suggest that protection for free speech is stymied by both the technical nature of information and the technological means through which it can be reported. Publication of e-mail archives and security analyses are subject to more legal controls than the Pentagon Papers. And bloggers, security professionals and college students are now routinely the targets of anti-speech lawsuits that plaintiffs would have been scared to bring against The New York Times, Time magazine or CNN. Needless to say, internet publishers have neither the lawyers, the respect nor the money that protect traditional media from similar attacks.
The time is ripe to reconsider what protections speech needs in an increasingly digital democracy. On the one hand, we need to recognize the special and fundamental role that journalists play in a free society. On the other hand, we need to recognize that many more individuals, unassociated with traditional newspapers, magazines and television shows, now play that same role. Even more revolutionary, speakers no longer need a mainstream news outlet to make news. We have the internet.
Any legal scheme that tries to separate "real" journalists from the rest of us -- as the Free Flow of Information Act now pending in Congress does -- is a mistake.
Similarly, protections can't shrivel up when the topic is technical or the means of publication is digital. Rather, courts and legislatures should consider whether the speaker has a contractual or other duty not to disclose, or is disclosing in furtherance of an illegal purpose or with criminal intent. Other truthful speech, regardless of who, what, when, where and why, needs protection. This is the best way for a digital-age democracy to separate wrongdoers from the rest of us.
- - -
Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.
