Another SC FOIA audit has too many failing grades

 It's nice to know that in South Carolina, the more things change, the more things stay the same, at least when it comes to state agencies' arrogance over the S.C. Freedom of Information Act.

When I supervised the first statewide FOIA audit at the AP almost 20 years ago, we found widespread violations (and even creepier stuff, such as police or sheriff's offices running license plate checks on those asking for basic information that is routinely supposed to be public, even without a request).

During the years, my reporting classes have routinely tested local police and sheriffs, with the same scofflaws, led by Columbia, at the bottom every time.

The SC Policy Council recently ran its own limited test. First, the conclusion because it is important and because I don't want it to get lost at the bottom:

There simply aren’t that many FOIA requests for agencies to deal with. One of the most popular arguments against tightening the state’s FOIA law goes something like this: If you require agencies to respond more substantively to requests, those agencies’ public information offices will do nothing but respond to fishing expeditions by people looking for scandal. Our study doesn’t support that conclusion. Only the Department of Transportation received a significant number of FOIA requests; other agencies received far fewer. As for DOT, a $2 billion agency with a robust public information office should be able to handle 400 or 500 requests in a year.

So here's what the Policy Council did:

On November 8, 2016, we asked for:

► the number of FOIA requests the agency has received in the past three fiscal years;

► the number of FOIA requests to which the agency the responded by producing documents over the past three fiscal years;

► the names/identities of those who have submitted FOIA requests to the agency in the past three fiscal years;

► an itemized list of each FOIA charge for the past three fiscal years; and

► an itemized list of each FOIA charge that was collected in the past three fiscal years and a detailed summary how the funds were spent.

The state agencies were these: Clemson University, the Department of Commerce, the Department of Transportation (DOT), the Department of Education, the Medical University of South Carolina (MUSC), the State Ports Authority (SPA), Santee Cooper, the South Carolina Research Authority (SCRA), the University of South Carolina (USC), the South Carolina House of Representatives, and the South Carolina Senate.

The results -- and keep in mind that South Carolina's law has a 15-day limit for the agency to acknowledge the request but no actual time limit on when the agency must produce the records (the grades are mine based on something similar we did with the AP audit):

•  Clemson: Said it got the request, never provided the records. Grade: D
• Commerce: Generally provided the information, but cited 52 cases of exemptions. However, Commerce does have a broad exemption for economic development deals in progress. So, even though I'm always somewhat skeptical because that exemption has been abused, give it a good-faith effort. And it did supply requesters' names, so it earned a B.
• Transportation: Provided most of the info, but refused to supply the names, citing the law's privacy exemption. Because that privacy claim is doubtful (more on that later), a C+.
• Education: Said it got the request, never provided the records. Grade: D
• MUSC: Said it got the request, never provided the records. Grade: D
• Ports Authority: Responded fully. Grade: A.
• Santee Cooper: Responded fully. Grade: A.
• Research Authority: Responded fully except for one request. Again, because it deals in areas where the economic development exemption could creep in, grade it A-.
• University South Carolina: Did not even respond. Grade: F.
• S.C. House: Responded fully within the law's constraints, except that five members pulled the "legislative memoranda, communications, etc." card from the deck and blocked their specific information. Does that exemption rankle? Yes, but it is on the books and at least the House leadership and staff tried. Grade: B.
• S.C. Senate: Pulled a blanket memorandum exemption and piled on with the potentially bogus personal privacy exemption. Grade: F

So if you're plotting out the grades in this class:
 A/A-: 3 .... B+/B: 2 ... C+/C: 1 ... D: 3 ... F: 2

A D is considered failing in your major, and government agencies' "major," as said clearly at the top of the FOIA and in court decisions, should be serving the public interest with disclosure. That 45% of the class has failed says a lot. On the other hand, there are also 45% A's and B's, which were rare in the original audit. So dum spiero spero.

But in this, the "So Sue Me (repeatedly, most likely) State," it has been difficult to get lawmakers, even those intent on improving the FOIA, to understand the extent to which the privacy exemption is being abused - and the extent to which the abuse is growing.

The Columbia Police Department is the champ in this area, blocking records that clearly should be open, even without a request. But there are plenty of other agencies and departments not far behind.

That link has a detailed discussion. But a quick recap:

• Private information in public records must be segregated and the rest released.
• S.C. courts have shown an inclination to narrowly construe any privacy exemption and certainly not extend it to matters of any public interest. (The attorney general's office looked at the court record and basically told a sheriff to stop trying to invent exemptions, including privacy.) A crime victim would seem to be, as unfortunate as this is, a person of limited public interest. So would a person, to my mind, making an FOIA request:

As the state Appeals Court put it in the Burton case: Our Supreme Court has defined the “right to privacy” as the right of an individual to be let alone and to live a life free from unwarranted publicity.  Sloan v. South Carolina Dep’t of Pub. Safety, 355 S.C. 321, 586 S.E.2d 108 (2003).  However, “‘one of the primary limitations placed on the right of privacy is that it does not prohibit the publication of matter which is of legitimate public or general interest.’”  Society of Prof’l Journalists v. Sexton, 283 S.C. 563, 566, 324 S.E.2d 313, 315 (1984) (quoting Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956)).  Indeed, the Court has held that, as a matter of law, “if a person, whether willingly or not, becomes an actor in an event of public or general interest, ‘then the publication of his connection with such an occurrence is not an invasion of his right to privacy.’”  Doe v. Berkeley Publishers, 329 S.C. 412, 414, 496 S.E.2d 636, 637 (1998) (quoting Meetze, 230 S.C. at 337, 95 S.E.2d at 609).

• Who is making FOIA requests is a matter public interest, both to see if a handful of requesters are flooding the system and as another check on power and influence. Institutions (companies, foundations, etc.) generally don't spend their time and money making FOIA requests unless they are researching a matter of deep interest to them, which also usually means it or will become a matter of public interest.

 I know bad cases make bad law -- I'm always afraid of that. And nothing is a slam dunk when it comes to privacy, especially in these days of national security hacking and wiretap revelations.

But I sure wish some player with enough resources to wait out what could be a protracted court case can find a named plaintiff and take on one of these "failing" agencies or the Columbia cops. Until then, periodic FOIA audits are likely to be South Carolina's own "Groundhog Day."

When we call something "public," let's be precise

So this arrived in my inbox this morning
"Ga. journalists arrested for filming during open meeting; may face jail time"

Damn.

And it links to this, with the headline:

Georgia Citizen Journalist Facing Criminal Charges for Recording Public Meeting

And, yes, there should be lots of outrage over this. Watch the video (I've included it directly here as well).



And I very much hope Tisdale wins her lawsuit and bleeds them dry.

But we need to be accurate when we call something a "public" meeting. This was the note I wrote to the SPJ official, Sharon Dunten, who sent this out:

 Sharon:

With all due respect, and very much acknowledging that the officer's behavior here seems beyond the pale.

A political rally on private property is not a "public" meeting. Whether it was advertised as such and so she was there by invitation, and thus the trespass is bogus, is, unfortunately, a matter to be adjudicated (or, one might hope, dropped by a sane prosecutor, which does not seem to be the case). Whether it was advertised as "public" is a point of evidence and perhaps law in that adjudication -- once one invites the public, may one then decide to kick part of the public out? But inviting the public  does not mean that one relinquishes the right to control numerous aspects. (e.g.: "No shoes, no shirt, no service").

Yes, there should be outrage directed at the deputy. Yes, it's BS to invite the public to a rally like this and then expect a reporter with a camera not to be there (if she had just had a notebook, would she have just blended in and  been ignored? - serious duplicity for which the organizers should be called to heel).

But let's not weaken the case and diffuse what should be focused outrage by calling it a public meeting. Let's save that for when this kind of stuff happens at real public meetings where the law is crystal clear so that so we have an even clearer case. It is entirely appropriate for us to be outraged at this. It is not good for us to bandy about the term "public," thus weakening, not strengthening, its meaning. Bad cases make bad law -- and bad statement of the facts makes bad practice.

Doug Fisher

FOIA: PACER, federal courts' records site, deleting old records

Such are the perils of the digital age and our collective memory. The one thing that should be available for a very long time, the nation's court records, are now being deleted in some jurisdictions from the federal courts' PACER database.

(We can have a long discussion later about whether court records delivered digitally should be charged the usurious price of 8 cents a page.)

Together with efforts to broaden expungement of criminal records in some states, I fear we every so steadily are being overtaken by the philosophy of presentism, a dangerous thing.

Update 9/19:
Ars Technica reports the courts will restore the documents. 

More SC FOIA follies from the AP's Jeffrey Collins

The AP's Jeffrey Collins provides this image on Facebook today of a North Augusta police report:

Here is his explanation:

I'm not a big fan of calling myself words like watchdog. But I do like to verify information governments want to give out. Sometimes it's not the whole story. Sometimes, it isn't true. I wanted to talk to the woman who called police on the 9-year-old girl at the park in North Augusta. Maybe she regrets the decision now. Maybe she saw something really dangerous that is not in the police report. But the Solicitor's Office blacked out all the identifying information about her. First off, it is likely illegal. Secondly, this is South Carolina, so your government is saying it knows best.

This was my response in the comments (slightly edited here):

This is very typical from what I've found in the spot audits my students do. It was also mentioned in The Sate's FOI piece this weekend.

What we have here is a clash of two sections of state law - the FOI and the privacy provisions. 

There shouldn't be a clash. But there is one, manufactured by too many agencies' legal guns and bureaucrats. As a result, the provisions of SC Code 30-4-30 http://scstatehouse.gov/code/t30c004.php that require police reports to be open for inspection without a written request are being undermined by  legal opinions or departmental policies focusing on 30-4-40, which deals with information of a "personal nature." Those (such as Columbia PD's) generally have advised that if certain information is private, the record must be redacted by the legal staff.

That triggers two things. As in the case of our experience with the Columbia Police, the claim now becomes that you can no longer just inspect the record for free, as the law allows. Instead, you must be provided a redacted copy, which the city then uses as an excuse to charge (for the staff time, of course).

And then there are the overreaching redactions, as you see here based on a very broad reading of 30-4-40(3)d exempting law enforcement material "endangering the life, health, or property of any person." Too many departments now say this includes all people mentioned in a report or, as in this case, the person who filed the complaint. Balderdash. All this is despite the language of the law that says bodies "may" but are not required to withhold such info and court and attorney general's opinions that say such exemptions must be construed very narrowly. I reviewed some of those here http://commonsensej.blogspot.com/2012/01/columbia-police-really-that-clueless.html

Especially of note is the attorney general's "Tanner" opinion (http://www.scag.gov/wp.../uploads/2011/03/06may23tanner.pdf). But the reality is that someone is going to have to sue over this, and given the recent state Supreme Court rulings, I'm not nearly as sure anymore that the privacy exemption might not be expanded, despite the precedents.

Collins follows up with this:

I see skirting or outright breaking of the FOI law in SC on nearly a weekly basis. There is no fear of it by public bodies any more. They aren't scared of being embarrassed and there is no fear of criminal sanctions. I keep my favorite police reports. Here's one from Walhalla, where the officer writing the narrative didn't feel all that inspired. 

He's right. There is no fear. 

While I'm all about the potential of the digital age, it has had unmistakable consequences for news orgs (and, in this case the public's ability to know) that I doubt we'll ever get back and that directly bear on this. (And that are not really talked about enough.)

The collapse of the monopolistic/oligopolistic financial model has left most limited in their ability to or unable to pursue the kind of blanket-bombing legal cases that might be necessary to stop this. (In other words, you sue the SOBs early and often, hoping to get enough lower-court rulings to send the message but also to establish a solid footing for a case to go to the state Supreme Court. And even if you get a favorable SUPCO ruling, as we can see with the S.C. Legislature's constant flouting of "local legislation" prohibitions, it might become a legal battle of attrition.)

Second, news media, thrown into the truly competitive marketplace (a good thing generally, I think), also find they no longer have the reality or, more likely, the perception that they can effectively mobilize public opinion. That really was the only thing in journalists' quiver that made public officials take notice. Politicians are like sharks in the water - they can smell blood a mile away, and it hasn't taken long for them to figure out that journalists are now more nuisance than threat. (Aside from the marketplace, journalists themselves have done their own damage to this with a series of scandals combined with failing early on to realize that their audience was moving on into the digital age. And some news orgs still don't totally get it.)

Collins  is doing his part by trying to publicize this regularly. But I hope more media outlets will do so. As I've said, this no longer can be a "Sunshine Week" thing. News orgs are going to have to get deep into the fray.

There's an excellent and readable (even though it's an academic paper) treatment of this (and the angst such activism provokes) in June's Journalism & Communication Monographs by Emily Erickson: The Watchdog Joins the Fray: The Press, Records Audits, and State Access Reform. (Unfortunately, as with many academic journals, it's not free unless you have connections through your local college or public library. But the abstract alone is worth reading, and I do recommend asking your library to get a copy if it does not have the database.)

Update: Good takeout on SC's FOIA issues from Jonathan Peters at Columbia Journalism Review.

AP story: Coast Guard investigator seizes journo's notes

This is just plain scary to me. The overreaching of law enforcement is becoming brazen:
http://bigstory.ap.org/article/coast-guard-seizes-journalists-records-search

AP v. Meltwater - I'm not betting for AP on the appeal

AP won a "big" victory against news aggregator Meltwater yesterday.

But I'm not betting against Meltwater on appeal when it comes to the judge's ruling that showing the lead from a story is not fair use.

While the ruling specifically couches it in the frame that Meltwater is not like a search engine, driving traffic to other sites, I expect the EFF and other groups to really pile on in the appeals court to gut the AP's "heart of the work" argument. I just have this sneaking suspicion the appeals court will agree.

What's clear, however, is that the next few years will see sustained battle in the courts - both legal and of public opinion - over the new equilibrium to be established in the digital age. Google already is battling on the European front.

The courts are usually about a decade behind technology in having the law catch up. We're about due.

(For some detailed commentary on all this, see Mike Masnick on TechDirt, who finds numerous flaws in the ruling, and Jeff John Roberts on Paid Content.)

Mississippi broadcasting job description only a lawyer or bureaucrat could love

Attention job-seekers: Mississippi Public Broadcasting is looking for a news director - at least we here at CSJ central think that's what it is after reading this posting.

We admit we were aided by the helpful inclusion of "news director" in parentheses in the subject line - but then that does raise the question of if you have to put explanatory material in your subject line, what's it telling you?

It's telling you that sometimes the bureaucrat-speak just gets out of hand. The ad contains bon mots like this:

Special Experience:  Employment must have been in an administrative, professional capacity in an area of work related to the functional responsibility of the bureau in which the position exists.  In those bureaus where registered specialists provide the primary source of functional and technical knowledge for planning and accomplishing the mission of the bureau, the incumbent must also be registered and experienced in that profession.

Translation: If you haven't had a hand in running a news operation, no need to apply.

From the social media dept. - how to get fired without really trying

These two posts by 10,000 Words summarizing eight cases of journalists being fired for their social media pronouncements this year might be well-employed in classroom discussions on how it's best to walk away for a minute or two before hitting the publish button:

http://www.mediabistro.com/10000words/8-journalists-who-were-fired-for-tweeting-part-1_b4136

http://www.mediabistro.com/10000words/8-journalists-who-were-fired-for-tweeting-part-2_b4202

And while we're in the "hold that thought before you push the button" mode, All Facebook says about two dozen social media firing cases are in the courts. Social media, the new lawyer's full-employment tool.

A common sense solution

A lot of ink (or pixels) has been spilled over Facebook's apparently knee-jerk reactions to Digital Millennium Copyright Act takedown notices that really are bogus.

But, slowly, common sense is beginning to creep into the digital world - in other words, a realization that all things don't work digitally (or free - but paywalls is a discussion for another day).

In this case, I found a quite common sense suggestion in the comment thread to the Tech Dirt discussion:

How stupid do you have to be to accept any sort of legal communication by email? Would you take down a site based on a Post-It Note™ stuck on your door, because they are about as secure as email.

When someone emails our organization with anything containing legaleese, DCMA, Etc, the mail server politely responds "It looks like this email contains material of a legal nature (relating to laws, trademarks, copyrights). Your email has NOT been delivered and is being returned to you because communications of this nature are not appropriate for an insecure medium such as email. If you have a legitimate concern please forward hand-signed documents by courier or registered mail. Thank you. Please be advised that your email WILL NOT be delivered"

If ISPs didn't make it so easy for people to abuse them they would make life much easier for everyone.

Amen.

Weintraub roundup on photos and the law

Colleague David Weintraub has a good roundup of the legal challenges facing photographers, including the use of eavesdropping laws by police against those who videotape arrests.

Here is his earlier part 1 that runs down numerous cases of photographers in public places being hassled by police.

Journalists note: Appeal vs. legal costs

John McIntyre has an interesting post on his blog today worth saving not only by copy editors but also by all journalists -- the difference between court costs and legal costs.

The story is one of a Marine's father who sued over anti-gay protesters from Westboro Baptist Church who picketed his son's burial. The father, Albert Snyder, lost on appeal, though the U.S. Supreme Court has agreed to hear the case.

According to the AP story in the New York Times, he was ordered to pay "legal costs" to the leader of the Westboro group. As the lawyer who wrote to McIntyre noted, however, "legal costs" and "court costs" are not interchangeable. The court costs total about $16,500 and are primarily for copying and document sharing. They are standard in appeals.

Legal costs, on the other hand, implies paying the other side's attorney's fees, a far greater proposition, as the lawyer questioning the AP article, W. Charles Bailey Jr., points out.

It's a distinction worth noting for the future.

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?

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

Justice's broad subpoena

Is it just me, or does it bother you, too, that the Justice Department earlier this year subpoenaed an online news site's "logs of the Internet addresses of all the site's readers -- as well other available information including visitors' e-mail and home addresses, Social Security Numbers, and credit card numbers, for June 25, 2008."

And then the department issued a gag order telling the folks at Indymedia.us not to talk about it.

Details at the Reporters Committee for Freedom of the Press.

Gawker ripped me off - a thought

A friend sent me Ira Shapira's angst-filled article from the Washington Post today in which he talks about first feeling giddy about having his article excerpted by Gawker, and then feeling angry.

An excerpt:

Even if I owe Nolan [the Gawker excerpter] for a significant uptick in traffic, are those extra eyeballs helping The Post's bottom line?

More readers are better than fewer, of course. But those referring links -- while essential to our current business model -- aren't doing much, ultimately, to stop our potential slide into layoffs and further contraction. Worse, some media experts believe that Gawker and its ilk, with their relatively low overhead, might be depressing online ad revenue across the board. That makes it harder for news-gathering operations to recoup their expenses.

My response, with a few additional thoughts:

Well, yes, I think Gawker went too far. Liberally cutting and pasting isn't coloring within the lines. If you want to summarize it in your own words, and with prominent credit, OK.

And if those referring links "are essential to our current business model," then you can't have it both ways. I'd like to see Shapira propose an alternative model (he really doesn't; though he does reference the recent debate about restricting linking, that's not an alternative business model).

But Shapira fails to broach the other point -- the fact that close to 10,000 people viewed it on Gawker instead of reading his 1,500-word tome ought to raise the question of why the WaPo doesn't have its own Gawker-type site excerpting its material. Maybe consumers are telling us something, namely that a lot of them don't want to read a river of text on something like Shapira's story on a millennial generation consultant because they have other things to do with their lives. Gawker et al. wouldn't survive if they didn't meet a need.

The publishing industry seems to think it is going to force people to do its bidding. No longer. They are like water and will seek their own level. Very little of what we do is so essential to running their lives that they could not survive with only a digest.

If your business model is hanging by the slim legal thread of the "hot news" doctrine, you have deep, deep problems that go far beyond "free riders."

Get your AP - direct

There is, as expected, lots of bluster and a few good points around the blogs today on AP's introduction of its digital rights management plan, especially AP head Tom Curley's quote in the Times that suggests the wire service will expect some kind of toll for even using a headline and linking. (Get a slightly different take on this from CJR.)

If nothing else, ya gotta love the graphic (nice use of metaphor and symbolism with that box there).


Among all the bluff and bluster are some references to AP's lack of a "home" news site (as opposed to the corporate site), largely ascribed to its members' desires to keep any traffic to AP copy on their own sites.

Not so.

AP has a home site (buried inside AP.org) on which it even sells some ads (I'm not sure the AP is actually selling those; it's as likely they are remnant inventory, but still, I wonder if there's any money coming in.) There are even RSS feeds.

Why don't you hear much about it? Well, yes, in part it is that member thing. But it's worth keeping the record straight and knowing it's there.

Settlement in linking case that could have made bad law

So the New York Times/Boston Globe and Gatehouse Media have settled their little tiff over the Globe's linking from its hyperlocal sites to stories on Gatehouse's Wicked Local sites.

Nobody admits wrongdoing, and both sides slink off into the night without exchanging checks, each to instead pay its own barristers.

Good. It was a bad case that had the potential to make very bad law, although at least one commenter thinks it still could have bad karma. David Ardia, director of the Citizen Media Law Project at Harvard's Berkman Center thinks judges could interpret it as the Globe saying that what it did was wrong.

That may be a little stretch. More likely, we're going to see a scramble to get a bunch of barriers up on news sites to prevent scraping by others. That's the sum of this case: the Globe agrees to play nice and abide by Gatehouse's electronic barriers -- although in the Globe story it sounds a bit snitty about the whole thing:

The settlement reflected the reality that GateHouse can technically block Boston.com's computer program from retrieving stories for conversion to links from GateHouse's Wicked Local blogs, which cover dozens of communities across Massachusetts. GateHouse had not previously established an effective barrier to prevent such scraping of its stories.

Gatehouse, it should be noted, said from the get-go that it had established such barriers and that the Globe's Boston.com was ignoring them.

What the Globe appears to give up here is merely a bit of automation. It still, according to its article, can deep-link to Wicked Local articles, but apparently it will have to come up with its own wording -- it can't scrape headlines or ledes. (It also is going to take down all it has scraped so far.) So it probably won't be splaying those many links across its sites. But it certainly could encourage its writers to include more in their stories, etc. And I suppose it could hire a few low-paid stiffs to manually fashion new headlines and link wording, if it wanted.

Boston has posted the text of the agreement (pdf).

Ampersand dispute

Who would have thought the lowly ampersand would have provoked so much ire (and apparently funded the endeavors of several law firms)?

But now one travel agency, Abercrombie & Kent, is suing &Beyond, claiming the use of the ampersand in the latter's name violates trademark.

File this under "get a life."

Getting a different mindset about corrections and changes

It's the online era. Things have a long life - far longer online than in newspapers or on broadcast.

Yet we still seem to be of the newspaper mindset -- if something is wrong take it down, purge it, but don't provide any easy-to-find connections (think about the fact that most of your newspaper's corrections are on some inside page instead of on the front of the section where the article appeared). And it's even worse in broadcast where the operative mindset still seems to be ignore most errors - we can just get it right in the next newscast.

That's not good enough anymore. Changes have to be transparent. Learn to use the "strikethrough" code in HTML to show most changes (for legal reasons, libelous ones may have to be purged).

Corrections have to be linked back to the original article, and if you are going to purge something, the correction/explanation needs to be at the URL of the original.

For some insight on why, read this E-media Tidbits post by Amy Gahran from early December*. And read the comments from a person also caught in the tangle of an article that started out online and was changed before going into print.

It seems to me a couple of things are in order:

• If you put an article online and think it might need to be updated, etc. (for instance, as in the case of the aggrieved commenter above, an article rushed online to avoid being scooped), consider using a wiki so that all changes can be tracked.
• (I know I'm being Pollyannaish here, but we're far enough into the 21st century that any reasonably competent modern publishing system should allow users to switch among a blog, a standard "story" unit and a wiki easily.)
  
• Start updating newsroom work flows and mindsets so that a correction is generally not seen as a traumatic thing but a natural outcome of the evolving way we are publishing online (keeping in mind that some will be more severe and may require management intervention).
• Set up guidelines for transparency. These should include:
• Clear refer lines atop stories to any further clarifying material, and a link on the clarification/correction back to the original.
• Striking out, not eliminating, most disputed text.
• Corrections at the original URL, or some kind of redirect, if the original has to be purged for legal reasons.
• Versioning of stories being developed online with the ability to track back as in a wiki.
• The ability for anyone in the newsroom to question something and the decision-making on whether to update pushed down as low as possible in the supervisory chain -- much as any worker on an auto assembly line can stop it by pulling a "defect" switch.
• Finally, a concerted effort is needed from publishers, broadcasters, etc., to get the courts to recognize and accommodate the technological realities. Fact is, in too many jurisdictions the company lawyers are concerned -- and in some, rightly so -- that current law makes it risky to be transparent.

The courts have shown themselves to be about a decade behind in refashioning the law to respond to major technological changes. We're about due for a spate of digital cases that could help redefine online and how it is used for at least two more decades (think of the Gatehouse suit against Boston.com just this week over "deep linking.")

Newsrooms need to get their acts in order and then be prepared to press the case to bring more of our case law and common law into the digital age.

--------
* Yes, early December. I'm a little behind on the reading.

Keep an eye on dustup in Boston

UPDATED 10:50 P.M. EDT 12/24 with some further thoughts about Lanham Act and alternative torts, as well as links to the original suit and Mark Potts', John Duncan's, Damon Kiesow's, Dan Kennedy's and Danny Sanchez's takes on it. Later added Dan Gillmor and the Citizen Media Law Project.

Gatehouse sues Boston Globe parent New York Times Co. for aggregating links from Gatehouse local sites in Boston's suburbs into the new Your Town sites the Globe finally got around to creating.

(I say finally because while Boston.com is a fine site, it hasn't exactly been on the cutting edge of hyperlocal journalism.)

So far, a federal judge has denied a temporary restraining order sought by Gatehouse -- TROs are very hard to get and basically require showing immediate harm or threat of harm that can't be mitigated any other way ("other way" includes making the offending party pay through the nose), so no surprises there.

Instead, things to go a possible temporary or permanent injunction sometime after Jan. 5. (Boston.com says "jury trial," folks, though in all my years covering federal courts I've never seen a civil case go to a jury trial this fast. Usually the judge hears motions and arguments and decides whether to issue a temporary injunction pending possible trial. And, of course, often the injunction is not even issued until after the hearings and trials since the presumption is not of immediate harm and that mitigation can be done by making the offending party .. etc.)

But my point here isn't to question the procedural issues; it's to say that we all had better pay close attention to this one. From the stories I have read so far, the Times' basic legal stance is that deep-linking and scraping is quite an established practice (think Google News). Gatehouse has fired the usual legal salvo: unfair business practices, copyright infringement, trademark dissolution, unfair competition, false advertising and breach of contract.

Gatehouse maintains Boston.com should not be scraping and reproducing the headline and first paragraph of articles. (Sounds amazingly like what AP was claiming against the Drudge Retort, doesn't it?)

Among Gatehouse's claims is that by sending people to its sites past the home page, the Globe is helping people avoid the home page ads, which, according to Gatehouse's own story, is where the publisher makes most of its ad money (let's forget, for the moment, why that's so Web 1.0 and move on). And there are lots of other issues on which the case can be decided: copyright violation (Gatehouse says its sites have a noncommercial Creative Commons licenses), false advertising (Gatehouse says Boston.com's advertising could confound people into thinking the GH news web sites have some affiliation with the Globe, etc.)

But it's also possible a judge armed with injunction powers could open the entire can of worms about Internet linking -- you know, the one that Google News is built on, and things like Publish2 and just the general ethos of the Web, especially blogging.

For instance, one of the alternative claims invokes the trademark dilution part of the Lanham Act. It would not be difficult to see, if accepted, that having wide-ranging tentacles. For instance, at the least any blogger putting Google ads up on his or her site could be argued to be in commerce. And I could see an argument even being made against non-advertising blogs, such as mine. After all, I do gain a certain notoriety, connections and occasional speaking gigs from what is on here. (I'm not surprised, however, and expect this may just be the opening gambit in a wide range of attempts at alternative torts by those feeling aggrieved, much as alternative torts such as trespass, violation of contract, and privacy have been pressed since Times v. Sullivan and related rulings have made a frontal libel assault more difficult.)

Gatehouse can says it's being thoroughly beneficent -- that CC license lets all the nonprofits like bloggers, etc., use it. (But wouldn't that also be dilution?)

But once it enters the legal arena like this, it's out of GH's hands -- and, frankly, I happen to believe that what's good for one is good for all. (The Globe story says Gatehouse has linked to Boston.com stories, too; I've not seen it, so I can't judge its veracity. But I do know that thebatavian.com, Gateholuse's online-only site competing with the Daily News in Batavia, N.Y., freely links to Daily News stories as well as those from regional papers, such as Rochester. Full disclosure, we do the same thing at Hartsville Today using Topix.)

There's an old legal saw: Bad cases make bad law. And this has the potential to be a very bad case.

Time to oil up the amicus brief machines and get ready to produce them, methinks. I doubt this one's going to stop at the District Court level.

Additional: Mark Potts' take on the matter.
And from a commenter on Mark's post, a PDF of the complaint.
John Duncan's post drawing parallels with Newser.com also is very worth reading.
Danny Sanchez at journalistopia has a more extensive list of links to documents and other commentary. So does Damon Kiseow.
Dan Kennedy's post looking at both sides and widely cited as the place from which many others build.
A summary of some of the early deep-linking cases.
Dan Gillmor says if Boston.com is evading the electronic barricades Gatehouse put up, then shame on Boston.com.
And the Citizen Media Law Project has a detailed look at the various arguments. It has all the documents.

The CMLP also links to a previous story I missed - one in which a Chicago law firm is asserting trademark claims against a real estate news outlet that linked to the firm's Web site as part of a report on home purchases by some of the firm's partners. This one is pretty scary, too.

But none of this surprises me. The good times are over and now it's every man, woman and child for themselves online. As various organizations realize this, they will naturally try to regain perceived control.

Newspaper replacement phase 1? But ...

The NY Times had a good article yesterday on smaller news operations that have sprung up in major cities and that are doing the watchdog role their weakened local papers are giving up.

In many ways, this is the first phase of the replacement of the newspaper I have written about (again, remember that "newspaper" here does not necessarily mean ink on paper, but the large, multifaceted newsroom) in the context of the online subscription argument.

Yet, I continue to be nagged by a question: Can we ever replicate the legal/financial throw weight that enabled papers like the Times go toe to toe with the government over things like the Pentagon Papers?

Do we need to?

Is it even the right question?