Thursday, December 31, 2009

TSA subpoenas raise tough issues for watchdogs

Chris Gray Faust, former USAToday travel editor, has highlighted an important situation on her blog, one that needs the attention of all journalists and might also give some pause to those who hope watchdog journalism can survive in the new era of atomized journalism.

Travel writer Chris Elliott and aviation writer Steven Frischling were hit with visits from federal agents and subpoenas after they posted online a Transportation Security Administration document outlining its security procedures.

Not surprisingly, the feds wanted to know their source. Frischling's computer hard drive also was taken.

Yes, I'll stipulate there are national security issues involved and the feds have the authority to do what they did.

But watchdog journalism requires sometimes defying authority. Were it not so, we would not have had the Pentagon Papers, Watergate, the revelations of the Bush-era wiretapping, etc. etc. And add your own load of local investigative reporting.

In the atomized journalism economy, however, there is a real question, one not much acknowledged by those who see a new era, of how this new era will intersect with a legal system that traditionally is at least a decade behind technology. As it stands, in today's legal environment, the large news organization - for better or worse - is about the only journalism institution with the economic throw weight to counterbalance the increasing legal power of government and corporations. (And, as seems apparent, even those journalism institutions are less likely to pull out the expensive legal guns these days as their business crumbles.)

Undoubtedly, Frischling and Elliott face thousands of dollars in legal bills.

So the title of Faust's post, "I the gig economy, who protects journalist bloggers," raises issues I'd like to see discussed more among the digiterati - what changes do we need in the legal system and what new institutions need to develop to encourage watchdog journalism.

I'll start with a couple of suggestions, one of which I've made before:
  • We need to develop a federal small-claims court in which cases of online defamation can be handled. It would be a court of unitary jurisdiction, so there is no onus on either party to have to defend or prosecute in a far-away location. Preferably, of course, almost everything would be handled electronically.
  • Existing journalism organizations like IRE and SPJ, and new ones such as Media Bloggers and ONA, along with those of us in academe and the profession, need to figure out ways to create cooperatives that can provide the same kind of institutional services, such as legal, that a corporate structure can, but at a reasonable price to the individual practitioner. (Media Bloggers does offer an insurance policy, but I'm suggesting more than that is needed, that there needs to be an actual legal infrastructure in place that can push back, not just be reactive.)
Your thoughts?

The TSA has now dropped the subpoenas and offered to buy Frischling a new computer since his was damged in the search.

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