New York Court Orders Fox News Reporter to Comply With Colorado Subpoena to Appear in Holmes’ Criminal Trial

By on August 24, 2013 in Journalism

Gavel-300x225This week, the Appellate Division of the New York Supreme Court affirmed a decision by a lower court that a Fox News reporter must comply with a Colorado subpoena to testify as a witness — and possibly divulge her confidential sources — in the criminal trial against James Holmes, the alleged gunman of the Colorado movie theater shooting.

In July 2012, Jana Winter released an article that claimed Holmes sent a notebook to his psychiatrist that contained details of his planned attack. Holmes’ defense attorneys, concerned that the notebook leak came from a Colorado law enforcement official and that such information may affect their client’s constitutional right to a fair trial, sought sanctions against fourteen law enforcement officials who knew of the notebook. When none of the officials admitted to leaking information to the media, on January 17, 2013, Holmes’ defense attorneys moved to compel Winter to testify and produce notes from the unnamed sources cited in her article. The Supreme Court of New York County enforced the Colorado District Court subpoena and Winter appealed.

Majority Opinion

On Wednesday, the New York Supreme Court Appellate Division held 3-2 that Winter is required to testify in Holmes’ criminal case. The opinion, written by Justice Clark, cited the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), which requires a witness to testify in another state. The court held that the petitioner complied with its burden of proof under CPL 640.10 when it secured a certificate from an out-of-state Colorado judge showing that Winter’s testimony was “material and necessary” and that the compulsion to testify would not cause Winter undue hardship as the petitioner would pay for her expenses.

The court held that New York’s shield law does not grant Winter protection from the Colorado subpoena to testify in Holmes’ case. The majority opinion held that Winter will be required to testify in Colorado and that she be subject to any testimonial privileges available under Colorado’s shield law rather than those privileges granted under New York’s shield law. The majority held that “the inquiry into admissibility and privilege remains the province of the demanding State [of Colorado] rather than the sending State [of New York].”

As for the substance of Winter’s testimony, the majority decision emphasized the distinction between compelling Winter to testify and compelling her to divulge her confidential sources, saying that the record does not establish with “absolute certainty” that the Colorado District Court will require Winter to disclose her confidential sources.

The majority opinion also ordered that the court record in New York be unsealed, citing a strong public interest in open access to court proceedings.

Dissenting Opinion
Two Justices dissented. The dissenting opinion written by Justice Saxe argued that Winter is protected from appearing in another state where there is a “substantial possibility” that the court will require her to identify her confidential sources. The dissent cited the protection granted to Winter under New York’s state shield law, Civil Rights Law Section 79-h[b].

In response to the majority’s CPL 640.10 discussion, Justice Saxe challenged the majority’s analysis of the “undue hardship” requirement of CPL 640.10. The opinion referenced the initial subpoena for Winter, saying that the January 2013 certificate to compel Winter to testify was ordered to identify who disclosed the notebook contents to the journalist.

Citing New York’s public policy of providing absolute protection for reporters, the dissent argued that the majority is incorrect in its analysis of what constitutes “undue hardship.” The dissent argued that the analysis is not limited to the costs and time of travel and missing work but should also acknowledge that the ordered disclosure of Winter’s confidential sources may affect her career as a journalist. The dissent stated that the majority ignored the “practical reality” of Winter’s situation, and therefore erred in holding that Winter’s testimony would not necessarily require her to divulge confidential sources.

Looking Ahead

The court battle is far from over. On Wednesday, Fox News filed an appeal notice with the New York Court of Appeals. The appeal will ask New York’s highest state court to reject the lower court’s decision that Winter must comply with the Colorado subpoena.

Samantha Scheller is a 2L at the University of North Carolina School of Law.

(Photo courtesy of Flickr user steakpinball pursuant to a Creative Commons CC BY-SA 2.0 license.)

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Unintended Targets: The NSA’s bulk email collection and Obama’s use of the word “targeting”

By on August 23, 2013 in Internet, Privacy, Transparency

A Foreign Intelligence Surveillance Court opinion released yesterday shed more light on how the National Security Agency collects Americans’ email data, highlighting the disconnect between the NSA’s collection practices and the Obama Administration’s characterization of email surveillance under the PRISM program.

The FISA Court opinion held that methods used by the NSA from 2007 to 2011 of collecting email data — including the content of email subject lines, senders, and times of transmission — violated the Fourth Amendment and Federal statutes. While the NSA can collect emails involving foreign senders and recipients under the Foreign Intelligence Surveillance Act, it cannot collect purely domestic emails.

Until 2011, the NSA’s collection of emails involved collecting “bundles” of emails from individuals’ inboxes, failing to separate the purely domestic emails bundled with the “targeted” emails involving non-U.S. persons. Basically, the NSA was collecting screenshots of individuals’ inboxes when only one of many emails in the screenshot was the subject of the investigation.

Since details of the PRISM email surveillance program were leaked in June, President Obama has repeatedly told Americans not to worry because “the NSA cannot target your emails.” While the President has never clarified what “targeting” means, this opinion makes it clear that, at least before 2011, the fact that Americans’ emails were not “targeted” doesn’t mean they were not collected.

Several proposed amendments to key sections of the Foreign Intelligence Surveillance Act, including a bill that failed in a close House vote last month, would prohibit the “bulk” collection of data. These amendments would require the NSA to show that someone is the subject of an investigation before it collects that person’s data.

Natasha Duarte is a 2L at the University of North Carolina School of Law and a first-year master’s student at the UNC School of Journalism and Mass Communication.

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Call for Papers: New York Times v. Sullivan, A Fifty Year Retrospective

By on August 20, 2013 in Defamation, First Amendment

FALROn October 12, 2013, we will be partnering with the First Amendment Law Review to help host their annual symposium, which will be focused on the 50th anniversary of the Supreme Court’s landmark ruling in New York Times v. Sullivan.  We’ll post more information about the symposium in the next few weeks, but if you are a scholar who writes in this area, you may be interested in submitting a paper to the First Amendment Law Review (note: the deadline is October 1).  Here is their call for papers:

The First Amendment Law Review is hosting its annual symposium in Chapel Hill, NC, on October 12, where scholars from across the country will participate in a discussion focusing on the 50th anniversary of the Supreme Court’s landmark ruling in New York Times v. Sullivan. In conjunction with our event, the First Amendment Law Review will also publish a symposium edition featuring articles related to Sullivan’s direct impact on the media, and articles that analyze Sullivan’s effect on a broader scale.

We are seeking articles that will be published in Volume Twelve of the First Amendment Law Review alongside work by some of our symposium panelists, which include Bruce Brown, Vincent Blasi, Ronald Cass, Stuart Benjamin, George Wright, and Ashley Messenger. As the only legal journal in the country dedicated solely to the First Amendment, the First Amendment Law Review is an ideal platform for those looking to contribute to First Amendment scholarship, and we have a tradition of hosting excellent symposia with impressive keynote speakers such as Erwin Chemerinsky and Floyd Abrams. This year, we are pleased to announce that Geoffrey Stone, Distinguished Service Professor of Law at the University of Chicago, will give our keynote address.

If you would like to be considered for publication in our symposium edition, please submit an article of at least twenty pages, including footnotes, by October 1 to falr@unc.edu. Those selected for publication will be invited, but not required, to attend our symposium on October 12, and will be recognized at the event.

 

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UNC Grad to Head Open Government Coalition

By on August 12, 2013 in Transparency

A recent graduate of UNC’s dual-degree program in media law, Jonathan Jones (M.A., J.D. 2011), has been named director of the North Carolina Open Government Coalition and Sunshine Center at Elon University.  He also will teach courses in Elon’s School of Communications.

Currently an assistant district attorney for Durham County in North Carolina, Jones will begin his new job in mid-August.  In his new job, Jones will work with the coalition’s board to organize the state’s annual Sunshine Day, advise citizens about open government issues, produce webinars or workshops around the state, handle communication for the coalition, and find new ways to inform North Carolina citizens of the value and processes of open government in the state.

Jones previously worked for the NCOGC as a legal intern in summer 2010.  He researched business models for a regional nonprofit investigative reporting center.

In a press release, Jones said: “I’m ecstatic to pick up on the tremendous work coalition members have already been doing to educate record holders and record seekers about our state’s open government laws.  Transparency in government is the cornerstone of democracy. It instills public trust and gives citizens faith in their government. I look forward to helping sunshine find its way into communities across our state.”

At UNC Jones served as editor-in-chief of the First Amendment Law Review and worked on UNC’s Innocence Project.  He has published in the First Amendment Law Review, News Media & The Law, and “Sunshine, Inc.: The Basics of Covering Business Organizations” produced by the Reporters Committee for Freedom of the Press.

He earned an undergraduate degree in journalism from UNC and worked for six years as a reporter at newspapers in Maryland and Virginia and at the News & Record in Greensboro.

The North Carolina Open Government Coalition unites organizations interested in ensuring and enhancing the public’s access to government activity, records, and meetings. The nonpartisan coalition educates people about their rights, supports their efforts to gain access, and advocates the principles and benefits of open government. The Sunshine Center is the educational arm of the NCOGC and focuses on outreach efforts to inform citizens about the importance of government openness.

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EFF Weeks 8-9: How the NSA’s mass data collection violates the First Amendment

By on July 25, 2013 in First Amendment, Internet, Privacy

EFF filed a lawsuit last Tuesday against the National Security Agency for its mass collection of Verizon customers’ phone records. First Unitarian Church of Los Angeles v. National Security Agency was filed on behalf of a diverse group of 19 organizations and focuses on an important First Amendment right: the right of association. Protecting associational freedom is increasingly important in the context of the government’s collection of metadata — pieces of information, such as the numbers a person calls, which, when put together, reveal information about that person’s associations, including organizations he or she belongs to.

Background: The First Amendment Freedom of Association

The First Amendment right of association is based on the freedom to assemble without government interference. In a landmark 1958 case, NAACP v. Alabama, the Supreme Court recognized that government access to people’s associations creates a “chilling effect” — it makes people less likely to associate with certain organizations. In NAACP v. Alabama, the Court held that it would violate NAACP members’ First Amendment rights for the state to force the organization to turn over its membership lists. The right to organize and assemble without government interference is so fundamental because these associations are forums for political expression and the advancement of ideas — the type of speech the First Amendment was designed to protect.

While discussions about data privacy tend to focus on the Fourth Amendment, First Amendment rights are equally implicated in electronic surveillance. The ability to keep one’s associations private is critical to preserving the right to freely associate.

The case against the NSA

EFF’s case argues that when the NSA collects data about the numbers a person calls and how often, that data can reveal a person’s protected associations, and the surveillance constitutes an interference with the right of association. To illustrate that point, EFF joined with 19 different organizations from across the political spectrum that focus on a range of issues, many of which conflict with one another. These organizations include churches, marijuana legalization advocates, and gun owners’ groups, to name a few. Many members of these organizations hold controversial views and depend on the ability to express those views as a group, but fear individual exposure.

What do the plaintiffs have to hide?

The potential chilling effects and the need for privacy are perhaps best expressed by Gene Hoffman, Chairman of Calguns Foundation, a gun ownership rights group. The group runs a hotline for gun owners who have questions about California gun laws. “California is a difficult place to live if you’re a gun owner,” Hoffman said in a press conference on EFF’s new case. “People are turning to our hotline specifically because they didn’t want to have a record created.” He mentioned that the people who have the most at stake might be those who belong to multiple organizations with potentially conflicting views: “If you are a supporter of marijuana legalization…and you were known to have phoned both [our hotline] and NORML [a marijuana legalization advocacy group], it could cause people to ask questions you didn’t want to have asked.”

New developments: Congress rejects legislation to curtail NSA surveillance

In a close vote yesterday, the U.S. House of Representatives voted against an amendment that would have cut funding for the NSA’s mass surveillance of call records. By striking funding for bulk data collection, the bipartisan amendment would have required Foreign Intelligence Surveillance Court orders to pertain to a person already under investigation. The current legal authority doesn’t require the FISA court to make a showing of suspicion that a person has engaged in terrorism or any illegal activity before it collects data. This lack of standards has allowed the NSA to engage in the mass collection of all Americans’ phone call records. The amendment failed in an extremely close vote of 205 to 217 and garnered both Democratic and Republican support.

Off-topic: Cute pictures of ducks

It’s not uncommon to have three dogs in the office on any given day, but last week one of EFF’s technologists brought these ducklings to work.

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