Thursday, December 29, 2005

Washington shield law gains bipartisan support

A bipartisan group of Washington state representatives has agreed to sponsor legislation to protect the confidential sources of news reporters, the Yakima Herald-Republic reports. The legislation, proposed by state Attorney General Rob McKenna, would provide an absolute privilege against compelled disclosure of confidential sources.

Opinions clarify access to officials' e-mail

For journalists and others interested in open access to government records and proceedings, e-mail poses unique obstacles. Two recent developments, one in New Jersey and another in Massachusetts, help clarify this sometimes muddy issue.

In New Jersey, the state's Government Records Council, the agency that oversees the New Jersey Open Public Records Act, has ruled that e-mail messages that discuss government business are public records open to public review -- even if they are on an official's personal computer, the Courier-Post reports. "The definition of a government record is not restricted by the location of the record," the council concluded in a decision earlier this month. The ruling requires the mayor of the borough of Fair Lawn to turn over all borough-related e-mails stored on his personal computer to a citizen who requested them.

In Massachusetts, the district attorney for Middlesex County issued a warning to local officials that careless use of e-mail to discuss town business runs the risk of violating the state Open Meeting Law, according to the Metrowest Daily News. In response to a complaint filed by the Daily News against the school committee for the town of Wayland, the DA cautioned that "members should limit e-mail communications to matters of a purely housekeeping or administrative nature, and should maintain copies of all e-mail communications in a central file."

Tuesday, December 27, 2005

Web host not liable in defamation case

The operator of a Bali-based travel business cannot use Arizona courts to sue another Bali business for posting allegedly defamatory information on a Web site hosted by a Phoenix company, the Arizona Court of Appeals ruled last week, according to a report in The Arizona Republic.

The court said that the defendant's use of an Arizona company's Web hosting services was not sufficient to establish jurisdiction in Arizona over the dispute between the two Bali competitors. The court also said that the federal Communications Decency Act of 1996 immunized the Web hosting company from damage claims resulting from material posted on the Internet by another party.

The decision is Austin v. CrystalTech Web Hosting, Case No. CA-CV 04-0823 (Dec. 22, 2005).

Gannett GC wraps up key media cases

Gannett Vice President and Associate General Counsel Barbara W. Wall has published a year-end wrap up of public-records and prior-restraint cases involving the company's newspapers. A second installment, due this week, will review cases that involved libel, privacy and reporter's privilege issues.

Best legal blogs of 2005

The folks at Blawg Review have handed out their 2005 Blawg Review Awards. I am proud to say that Coast to Coast, the weekly legal news podcast I cohost with J. Craig Williams, won the award for Best Legal Podcast.

Wishing you the best for the holidays

To all those who read this blog, I wish you peace, happiness and prosperity this holiday season and for all to come.

Tuesday, December 20, 2005

Two podcasts: Blackberry battles and holiday music for lawyers

Two new installments of our legal news podcast, Coast to Coast, are now available:
  • Holidays with Lawyers. Our guest is Lawrence Savell, the lawyer, songwriter and performer who joins us for our holiday podcast. Savell has recorded three humorous holiday albums for lawyers, all available at We listen to samples of Savell's music and learn how he uses music and humor to bring balance to his professional life.
Coast to Coast is the weekly legal news podcast cohosted by California blogger J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Audiocast: Law Firms Going Global -- What It Takes

As part of its special section, Far East, Close to Home, features a free webcast of a panel discussion, Going Global: What Does It Take? I participated on the panel, along with fellow bloggers Rees Morrison, senior director of Hildebrandt International, and Bruce MacEwen, law firm consultant. editor Scott Martin moderates.

As the promo says:
"Find out what it takes for small and midsize firms to open offices overseas, and learn what in-house counsel need to know when working across borders."

Thursday, December 15, 2005

Indiana ruling strengthens records law

In Indiana, a ruling by the state Court of Appeals this week in favor of a small-town weekly newspaper has bolstered public access to government records, according to a report by The Indianapolis Star. The court ruled that the paper, the Knightstown Banner, had a right to see details of a settlement that the town had reached with a former employee.

Town officials had kept secret most details of the settlement, contending that the town's insurance carrier, not the town itself, was party to the settlement, thereby excluding it from the public records law. A lower court had agreed with the town.

The Court of Appeals said:
"Knightstown focuses on the argument that the definition of public record does not include documents created by private individuals acting on behalf of a public agency. This distinction is without merit. There is no doubt that although Retained Town Counsel is a private individual, and not itself a public authority under [the law], he created, maintained, and retained custody of the settlement agreement as attorney for Knightstown, which is a public authority."
The full text of the decision is here.

Wednesday, December 14, 2005

Bush wins praise for FOIA order

President Bush today signed an executive order calling on federal agencies to streamline their handling of Freedom of Information Act requests and to appoint senior officials to monitor FOIA compliance. The order won praise from media organizations including The Reporters Committee for Freedom of the Press, the National Newspaper Association and the Newspaper Association of America.

The order, titled Improving Agency Disclosure of Information, directs agencies receiving FOIA requests to "respond courteously and appropriately" and to provide "citizen-centered ways to learn about the FOIA process."

It directs each agency to appoint a senior official -- at the assistant secretary or equivalent level -- to serve as chief FOIA officer. The officer will be responsible for FOIA compliance and monitoring.

The order also requires each agency to establish an FOIA requester service center which is to be "the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response."

Under the order, each agency will be required within six months to review its FOIA operations and develop a plan for ensuring compliance with the law and the executive order. The order directs the attorney general to compile these agency plans and submit a report to the president within 10 months on implementation of the executive order.

RCFP issued a statement today calling the order a good start to making the government more accountable and open. The NNA and NAA jointly issued a statement commending the president for opening the door for better service to the public in dealing with FOIA requests.

U.S. ranks sixth in jailing journalists

The United States ranked sixth among the world's leading jailers of journalists in 2005, the Committee to Protect Journalists said in a report issued yesterday. China, Cuba, Eritrea and Ethiopia were the worst offenders, the report said, together accounting for two-thirds of the 125 editors, writers and photojournalists imprisoned around the world.

The U.S. is holding four Iraqi journalists in detention in Iraq and one Sudanese national, an assistant cameraman for Al-Jazeera, in Guantanamo.

For the seventh consecutive year, China was the world's leading jailer of journalists, with 32 imprisoned, the report said. Fifteen of the cases in China involved Internet journalists. Cuba was second, with 24 journalists behind bars.

Tuesday, December 13, 2005

Do dogs have right of free speech?

In what may be a case of canine versus the constitution, a lawyer in El Paso, Texas, is contending that a dog's barking is speech protected by the First Amendment.

According to a report Sunday in the El Paso Times, the novel notion is being raised in defense of a lawsuit brought by an El Paso man over his neighbor's dog's alleged nonstop barking. The neighbor denies the barking, but his lawyer says that, if the dog was barking, it has a constitutional right to do so.

The newspaper quotes the lawyer as promising to fight the issue to the Supreme Court, if necessary. "I can honestly state that if the dog did bark at all, the dog was simply exercising his first amendment right to freedom of speech."

My two cents: He's barking up the wrong tree.

The ironies of source protection

A thoughtful piece in The Miami Herald by columnist Edward Wasserman, journalism professor at Washington and Lee University (and one-time colleague of mine at ALM), probes the ironies of source protection. Says he:
"The fact is that source protection is miles from being a paramount concern for journalists. Forget confidential informants for the moment. Apart from them, obligation to sources is a miserably neglected area of journalism ethics. The well-being of informants, and the ways that the reporting they contribute to may rebound on their lives, are things that journalists worry about rarely, if ever."

Friday, December 09, 2005

Colorado bans blogging on state computers

After learning that anonymous postings to a Colorado political blog,, originated from a computer in the office of Gov. Bill Owens, the governor issued a directive banning state employees from posting to blogs using government computers, the Rocky Mountain News reports.

The governor's directive, issued through his chief of staff, said:
"It has become apparent that Executive and Legislative computers have been used to post commentary on political web logs (blogs).

"Today, the governor ordered that we develop new policy prohibiting the use of government computers from being used to post to any such sites. Please make certain that all members of your respective staffs are notified that this policy is effective immediately."

Thursday, December 08, 2005

Feds' failure to name names violates FOIA, suit says

A lawsuit filed in federal court in New York this week alleges that the U.S. government is unlawfully withholding information it normally provides the public about some 900,000 of its civilian employees, including employees working for the Environmental Protection Agency, the Occupational Safety and Health Administration and the Federal Emergency Management Agency.

Brought by Public Citizen on behalf of the Transactional Records Access Clearinghouse, a research group at Syracuse University, against the Office of Personnel Management, the lawsuit charges that the agency violated the Freedom of Information Act by failing to provide the information or explain its refusal.

Since 1989, TRAC has posted a database on the Internet with the name, work location, salary and job category of all federal civilian workers except those in some law enforcement agencies. The data are often used by reporters and government watchdog groups to monitor policies and detect waste or abuse.

The government first began providing the public with detailed information about all its employees in a register published almost 200 years ago. The first name in the first register, authorized by Congress in 1816, was President James Madison.

Further reading:

Podcast: Military recruiting at law schools

Coast to Coast this week looks at military recruiting at law schools and the case argued earlier this week before the Supreme Court, Rumsfeld v. FAIR. Our guest today was Lara Schwartz, chief legislative counsel for Human Rights Campaign, an organization devoted to promoting lesbian, gay bisexual and transgender equal rights.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.

Mass. lawyer's jab at judge not protected speech

Massachusetts' highest court ruled today that the First Amendment does not protect a lawyer from discipline or disbarment for criticizing a judge in a pending case unless the lawyer has "an objectively reasonable basis" for the criticism.

In so ruling, the Supreme Judicial Court for the first time set out the standard to be applied in Massachusetts lawyer disciplinary proceedings when the lawyer invokes the First Amendment in defending against charges that he impugned the integrity of a judge without basis during a pending case.

The standard it adopted, the court said, is the one applied in the majority of states that have considered the issue. The SJC rejected the standard adopted by a minority of states, the "actual malice" defamation standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Writing for the court, Justice Francis X. Spina explained:
"Judges are not above criticism or immune from review of their court room conduct. ... Under the objective knowledge standard, an attorney does not lose his right to free speech. He may make statements critical of a judge in a pending case in which the attorney is a participant. He may even be mistaken. What is required by the rules of professional conduct is that he have a reasonable factual basis for making such statements before he makes them."
The case before the court involved lawyer Matthew Cobb, who had been ordered disbarred for multiple ethical violations. Among the claims against him was that he filed papers with the state Appeals Court alleging that a trial judge had been improperly influenced by the opposing counsel. In an affidavit he filed with the Appeals Court, he alleged that the opposing counsel "must have some particular power or influence with the trial court judge." A single justice of the Appeals Court found that his allegation was "scandalous" and "devoid of any rational or supportable basis in fact or law."

After Cobb was ordered disbarred for this and other infranctions, he appealed to the SJC, arguing that his statements about the judge, even if unfounded, were protected by the First Amendment. The SJC disagreed:
"The respondent has demonstrated rather convincingly by his quick and ready disparagement of judges, his disdain for his fellow attorneys, and his lack of concern for and betrayal of his clients, that he is utterly unfit to practice law. The only appropriate sanction is disbarment."
The case is: In the Matter of Cobb, SJC-09333 (Dec. 8, 2005).

Tuesday, December 06, 2005

Podkey creator denies he hijacked' feed

As George Lambert, creator of Podkey, points out in his comment to my post yesterday about an eWeek story regarding the "hijacking" of Erik Marcus' podcast feed, eWeek later followed up with Lambert's version of the story.

Lambert told eWeek that Marcus had registered with his service to begin with and the "ransom" represented fees that would be required to do the custom coding the podcaster has demanded. eWeek quotes Lambert:
"He wanted me to make sure no other directory services got the information from me, but I can't tell who are directory services, because we're not submitting anything. People are coming to look at our list. I have a choice: I remove it from anywhere or I [don't] remove it. You can't restrict who comes to look at your podcast. So his request wasn't technically practical.

"If you want me to come up with a solution, I can try, but that's consulting. That doesn't fall within the bounds of a free service—one that's there to make people's lives better. Is that extortion? I met his [original] request immediately and without reservation. I said I'd reinstate it for free if he met my terms. If you're asking me to do something custom, you have to pay me to do [it]. That's not unreasonable, and that's not extortion."
See Lambert's blog for more on this, including e-mails between him and Marcus.

FOIA exemptions help U.S. step up secrecy

The U.S. government released less information under the Freedom of Information Act in 2004 than in 2000, according to a newly released study by the Coalition of Journalists in Open Government. Even though FOIA requests to federal agencies dropped by 13 percent, their overall use of exemptions to screen information rose by 22 percent, the report says.

Forming the basis for this greater level of secrecy are three exemptions promoted by the Bush administration, CJOG contends. The exemptions allow withholding of information regarding intra- and interagency memoranda, internal personnel policies and proprietary information or trade secrets.

The report concludes:
"The findings make clear that the controversial 2001 memorandum from then-Attorney General John Ashcroft did in fact alter agency response to requests for public records. AshcroftĂ‚’s memo reshaped the guidelines agencies use when considering FOIA requests."
Notably, the study found that agencies denied FOIA requests less frequently in 2004 than in 2000. Nevertheless, requesters received significantly less information. Full grants -- where the requester received all information asked for -- fell from 55 percent in 2000 to 45 percent in 2004.

Monday, December 05, 2005

The hijacking of a podcast's RSS feed

eWeek has the story of how a cyber-squatter hijacked the RSS feed for "Erik's Diner," a podcast produced by Erik Marcus, publisher of

It all started when Marcus discovered that the Yahoo podcast directory listed not his RSS feed, but one belonging to a site named When his efforts failed to get Yahoo to correct the listing, he went to Podkeyword, which agreed to drop the duplicate feed. It was then that Marcus discovered that Apple's iTunes service also had the Podkeyword RSS feed. When Podkeyword dropped the feed, he suddenly lost roughly 1,000 iTunes subscribers.

This sent him back to Podkeyword asking to reinstate his listing. But, according to eWeek, Podkeyword reportedly responded that the listing would be reinstated only if Marcus provided an unspecified payment or agreed permanently to its terms.

The moral of the story, says eWeek writer Lisa Vaas, is that RSS feeds are far more vulnerable to squatters than Web site domains, because hijacking an RSS feed requires no stolen passwords or other overtly illegal tactics. She explains:
"Rather, it merely involves finding a target Podcast and creating a unique URL for it on a Web site that the hijacker can control. The hijacker then points his URL to the RSS feed of the target Podcast.

"Next, the hijacker does whatever it takes to ensure that, as new Podcast engines come to market, the page each engine creates for the target Podcast points to the hijacker's URL instead of to the Podcast creator's official URL."
In her blog, Marcus' lawyer, Colette Vogele, tells how to protect yourself against RSS hijacking.

Column: 2005 -- Year of the Podcast today features my latest Law Technology News column, "2005: Year of the Podcast," in which I review a cross-section of law-related podcasts.

Thursday, December 01, 2005

Podcast: Abortion and the Supreme Court

Shortly after the Supreme Court heard oral arguments yesterday in Ayotte v. Planned Parenthood, we recorded the Coast to Coast program, Supreme Court and the Abortion Issue. Our guests to discuss the case and its implications were Neil S. Siegel, associate professor of law at Duke Law and former law clerk to Associate Justice Ruth Bader Ginsburg, and Mathew D. Staver, president and general counsel of the anti-abortion group Liberty Counsel.

Coast to Coast is the weekly legal news podcast cohosted by J. Craig Williams and me. An archive of all past shows is available here. All shows are available to listen to in Windows Media format or to download in MP3 format. The show's RSS feed is available here.