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Tuesday, August 2, 2016

Bartnicki v. Vopper is the SCOTUS case that lets journalists report on stolen data while it is excluded from courtroom in the Ashley Madison saga

A federal judge in St. Louis recently ruled that hacked data from Ashley Madison could not be entered as evidence in ongoing lawsuits against the extramarital-affair Web site and its parent company, Avid Life Media. U.S. District Judge John A. Ross found that the material could not meet evidentiary standards because it was stolen.

A reasonable observer might ask: "If stolen documents can't be used in a court of law, why can journalists use them to write about Ashley Madison customers?"

I'm a journalist, not a lawyer, but I'm pretty sure I can provide a law-based answer to that question by raising two points:

(1) A 2001 U.S. Supreme Court (SCOTUS) case gave journalists the right to report on information they receive that has been illegally obtained;

(2) Evidence provided in a courtroom, and evidence required in a newsroom are two very different things.

The SCOTUS case is Bartnicki v. Vopper, 532 U.S. 514 (2001), which involved a radio commentator who played a tape on his public-affairs show of an intercepted conversation between two union officials during contentious collective-bargaining negotiations for teachers at a Pennsylvania High School. An unknown person had intercepted and recorded the call, and the tape wound up being played on another radio station, and local newspapers published its contents.

Here is how Justice John Paul Stevens described the issues at hand:

These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934,[1] this is the first time that we have confronted such an issue.

The suit at hand involves the repeated intentional disclosure of an illegally intercepted cellular telephone conversation about a public issue. The persons who made the disclosures did not participate in the interception, but they did know—or at least had reason to know—that the interception . . .  was unlawful. Accordingly, these cases present a conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech. The Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendment's application to this issue. Nevertheless, having considered the interests at stake, we are firmly convinced that the disclosures made by respondents in this suit are protected by the First Amendment.

Putting it more succinctly, Stevens wrote:

Simply put, the issue here is this: "Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?" Boehner, 191 F. 3d, at 484-485 (Sentelle, J., dissenting).

How did the court approach the First Amendment issues before it? Again, Justice Stevens provides the framework;

First, respondents (the journalists) played no part in the illegal interception. Rather, they found out about the interception only after it occurred, and in fact never learned the identity of the person or persons who made the interception. Second, their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else. . . . Third, the subject matter of the conversation was a matter of public concern.

The court's ultimate ruling, siding with a free press over privacy concerns, rode largely on the shoulders of truth. From Justice Stevens:

As a general matter, "state action to punish the publication of truthful information seldom can satisfy constitutional standards." Smith v. Daily Mail Publishing Co., 443 U. S. 97, 102 (1979). More specifically, this Court has repeatedly . . .  held that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order." Id., at 103; see also Florida Star v. B. J. F., 491 U. S. 524 (1989); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978).

In the end, this was a classic battle between privacy and free speech--and privacy lost. Wrote Stevens:

In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance. As Warren and Brandeis stated in their classic law review article: "The right of privacy does not prohibit any publication of matter which is of public or general interest."

As for item No. 2 above, it touches on the Rules of Evidence, which I suspect many law students would say are a major pain in the posterior to learn. I don't have a formal legal education, but I've been involved in more court cases than I care to count, so I think I can make an educated guess about why courts view evidence allowed in court very differently from information published in the press.

My understanding is that a lawyer generally has to "lay a foundation" before evidence can be accepted in a court case. For example, consider a possible civil case over alleged insurance fraud. A plaintiff's lawyer in such a case likely would want to enter all sorts of documents to show that his client was defrauded. But how could he show the documents were legitimate? One way might be to put his client on the stand and have her testify that these were documents the insurer sent her and she kept them in a file cabinet at home.  More than likely, that would lay the foundation for showing the documents were real and could be entered as evidence.

That process becomes difficult when the evidence has allegedly been stolen. Who is going to testify to the documents' authenticity? Is the thief going to do that? Not likely. I suspect that's why U.S. Judge Ross in Missouri excluded the stolen Ashley Madison data. There is no way to lay a foundation that the information is authentic.

On the other hand, Ross found that the data likely could be entered if produced as part of the discovery process. I'm guessing that's because someone, likely an Ashley Madison official, will be able to lay the necessary foundation for use as evidence.

I suspect some readers will respond to this explanation with: "Well, that's all well and good, but it's still unfair." I can't say that's an unreasonable statement. But the law has found that lawyers and journalists, while both have serious rights and responsibilities, operate in different arenas when it comes to the evidence they need to do their jobs.


Anonymous said...

Maybe this will satisfy all the people who get "verklempt" over your Ashley Madison posts.

Anonymous said...

I get its legal, but it just doesn't address the issues that matter to me. In a day that is rife with racial/economic/political injustice , I just personally don't care what a private citizen does in their personal life. I've heard your sociological study argument, but it rings hollow for me. I would much rather hear about topics that can move the injustice needle...legal or not.

Not an attack on your blog, LS. Just an opinion of a long time reader. Thanks for listening.

Anonymous said...

So, I guess this is the reason you plan to publish more Ashley Madison posts in the future?

legalschnauzer said...

Yes, that's part of the reason I plan to write more AM posts in the future. One, it's legal and proper to engage in such reporting and, two, it's an important story, one that shows how the minds of certain high-level elites really work.

Anonymous said...

Informative post, LS, especially the part about having to establish a foundation to enter evidence in a court of law.

Anonymous said...

This is interesting. A key part of the Bartnicki court's opinion that it was permissible to disclose the electronic communication obtained illegally by a third party was that the subject matter concerned an issue of "public concern". It is easy to see how the union negotiations in that case were a matter of public concern. It seems much more difficult to argue that the fact that a private individual (as opposed to a public official or a celebrity) was a member of a website for affairs is a matter of public concern. Seems to be a distinctly private concern. Thoughts?

Anonymous said...

I keep reading from Trump supporters that Hillary Clinton is going to be indicted because of information from the DNC hack, some of which Julian Assange and WikiLeaks have released. If the material was stolen by a hack, how could anyone establish a foundation that would allow for its use in a criminal case?

legalschnauzer said...

They can't, @1:50, unless the hackers come forward -- and if the hackers do that, they are going to have their own criminal issues to deal with. I've read a lot of the same stuff you've read about a "Hillary indictment," and it's just the wet dreams of Hillary haters. If she gets indicted for something, and I doubt she will, it won't come from the DNC hacks. BTW, great question and great point.

legalschnauzer said...

1:32 -- I think we can establish that using Ashley Madison in an effort to cheat on your spouse is unethical, risky, stupid, and potentially compromising. (As for the compromising part, perhaps you remember the film "Fatal Attraction.") When people who hold positions in major public facilities (or those that engage in public projects) -- banks, law firms, hospitals, military, law enforcement, wealth managers -- engage in such behavior, it becomes way more than a private concern.

Just from a technical standpoint, they are using the federal wires (publicly owned) to engage in this dubious behavior. That alone, makes it a public matter.

At one point, the Bartnicki ruling uses the term "newsworthy" as a key consideration in allowing First Amendment protection. The AM hack has been covered by news outlets around the world, and by any definition, it is newsworthy -- and thus, protected.

Two Jakes said...

Mr. Schuler, I'm confused. You have posted a few times now accusing unknown third parties of creating fake Ashley accounts for you. Yet you seem happy to publish personal information about people supposedly in the years-old Ashley data even though you provide no proof that they ever actually visited the site!

Why should we believe you had access to valid Ashley data? Can you provide even a bit of proof that you aren't just randomly smearing your enemies? Or are you covering up for the fact that for years you used the Ashley site and several others to stalk and harass your "enemies"?

I think it's telling that real journalists with ethical standards aren't bothering with this "story" anymore. It just isn't in the public interest and it certainly isn't topical!

legalschnauzer said...

Two Jakes, I have addressed this several times, but I guess I will try one more time:

(1) I've not accused anyone of creating fake AM accounts for me. It's a matter of fact; I've received inquiries from "women" and been welcomed by AM. And I did not set up any account.

(2) There is AM data for non-paying customers and data for paying customers. I've consulted tech experts who say the non-paying data (where my fake accounts probably lie) is not reliable, but the paying data is reliable. I've reported only on the paying data.

(3) For everyone I've reported on so far, I contacted them multiple times in advance for comment. They had every opportunity to provide an explanation. Several individuals have provided legit explanations, and I have not written about them. Some have claimed the AM person was not them, and I am investigating those further. Have not written about them at this point.

(4) I am a real journalist (go back and see who broke the Bentley/Mason scandal), and I know how journalists operate. First, quite a few journalists have covered the story extensively. For those who have avoided it, they probably don't have the time to do the necessary research, plus their editors might discourage digging because elites in the media are on the list.

(5) The AM data only became known last August, so it's been less than a year that anyone has reported on it. I haven't stalked or harassed anyone, and I haven't reported on anyone that is an "enemy." Your imagination is running away with you.

Anonymous said...

To be fair, why don't you also report on on the "good" the companies these people work for do for the community? You seem to claim that by signing up for AM, they make bad decisions (risky, stupid, compromising to use your language). But what about all the good decisions they make...employing thousands of people, giving to local charities (large companies in Birmingham give about 80% of the United way budget), pay taxes for schools/infrastructure, etc?

But wait...that wouldn't be sensational, or uphold your theory, would it? Never mind...

Anonymous said...

Yes, the AM hack was widely reported and can be considered newsworthy and a matter of public concern. But it does not logically follow from this that a private citizen's personal involvement is newsworthy or a matter of public concern. The argument that you are warning the public about compromised individuals in important positions is based on pure speculation. If you have something concrete to point to that suggests that a particular individual has actually been compromised, you may have a story. Otherwise you are disclosing stolen data about a private citizen justified only by a speculative concern. This is not reporting on a matter of public concern. It is salacious speculation about a private concern.

legalschnauzer said...

Sorry, @3:21, but you are wrong about the facts, ethics, and law of the situation. I've explained all of this many times. I would suggest you go back through comments sections on other AM posts, or you are welcome to contact me at (205) 381-5673.

Since you feel so strongly about this matter, I'm sure you won't mind letting me know your real identity.

legalschnauzer said...

Since you are concerned about fairness, @3:04, why don't you tell us who you really are and what agenda you might have. In fact, you can just tell me, no one else, at (205) 381-5673.

Also, if you want to write about the good various companies do, why don't you start a blog and do it yourself. I guess it's easier to try to tell me how to run my blog. Just a little arrogant, aren't we?

Anonymous said...

Hah, LS, I love it when you pull out the "Why Don't You Call Me and Identify Yourself" card on these namby pambies. Do they ever respond to that? If not, that makes me think they are on the list and are worried about being outed themselves.

legalschnauzer said...

Nope, not a one ever has responded to that offer. And I agree that suggests they are on the list.

Anonymous said...

As an attorney, let me just say that were someone to file suit against you, the cases you claim as precedent would offer little, if any, protection. The use of information such as this can be used, but its use is judged as within a certain context. Your "reporting" as far as I can tell provides no context whatsoever and seems to used to salaciously malign individuals. Second, you would have a difficult time proving you are indeed a journalist as having a blog doesn't make you a member of the Fourth Estate. And given your history in defamation suits, you would have a very hard defending yourself in court. I would imagine that were someone to file suit against you, this argument would be quickly dismissed and you would find yourself in a similar position as Nick Denton of Gawker media. His attorney tried making similar arguments and they did not hold up and his case seems to have had greater merit than whatever you are claiming here.

legalschnauzer said...

Since you are an attorney making bald and baseless assertions, why don't you contact me and we'll discuss. Unless you do that, I'm going to stick with this assessment -- you are full of shiite, and you probably are a con man, too. Why do I say this?

(1) You say I claim certain cases are precedent. I didn't "claim" they are; they are precedent, and that can't be disputed;

(2) I didn't say they would offer protection. My main protection would be the truth. The reports I've published so far state that certain individuals appear as paying customers at Ashley Madison. And that has been true in every case.

(3) Your "certain context" argument is pure horse manure. Even you can't explain it.

(4) I have a degree in journalism and have practiced in the field professionally for 35-plus year, which probably is way longer than you've been a lawyer.

(5) In both defamation cases against me, the final result was that, as a matter of law, my reporting was neither false nor defamatory.

(6) I have no idea who Nick Denton is or what he has to do with this discussion.

Feel free to contact me, identify yourself, and I would be glad to discuss. But I think it's a safe bet that you aren't a big enough man to do that. But you certainly are full of s--t.

legalschnauzer said...

A couple of points about the Denton/Gawker/Hulk Hogan case:

(1) The verdict in favor of Hogan is a long way from holding up on appeal;

(2) It involved allegations of invasion of privacy. I'm not aware of any AM reporting that comes close to meeting the elements of invasion of privacy.

Anonymous said...

"But I think it's a safe bet that you aren't a big enough man to do that. But you certainly are full of s--t."

LS: What makes you think 5:08 PM is a guy? My guess is there are plenty of non-male attorneys in Alabama that would love to shut you down on AM and other issues about which you've written. Just sayin....

legalschnauzer said...

The person at @5:08 just has a male tone, to my ear. But as you suggest, I could be wrong about that.

Regardless of gender, I suspect the person is no closer to being an attorney than the guy you might see sleeping under the nearest bridge.

Oh, I agree there are a number of women who have sided with sleazy conservative men and probably don't like my journalism. Two who come to mind are JM Garrison and RC Mason.

For that matter, women played a huge role in screwing me out of my job at UAB. I used to think having more women in positions of authority would make the workplace more fair and sensible. I no longer believe in that line of BS. I believe in equal rights for women, across the board, but they've proven to me they can be dirt bags, just like men.

Anonymous said...

You do a piss poor imitation of a lawyer, 5:08. If you are an attorney, I'm married to Bo Derek.

Robby Scott Hill said...

The degrees & the work experience don't matter. If a high school grad with a C average & less than five years work experience can suck a mean dick, you're shit out of luck. That's the power of hot lips & a juicy vagina. Why work for a living when you can screw your way to a fortune?

Anonymous said...

I'm curious about your take on the Hulk Hogan case where a stolen sex tape was published by a third party gossip site and the verdict came down on the side of privacy. It seems similar to the AM case to me except there it was a celebrity and here it is private citizens so the public interest argument is significantly reduced.

Anonymous said...

You don't think reproducing things people wrote with the expectation of privacy is a breach of their privacy?

All the coverage of the Hogan case is focussed around a change in attitudes to privacy, that even for celebrities gross invasions of privacy are seen negatively now let alone for private citizens.

Also see the very negative reaction to Gawkers publication of the David Geithner extramarital sexual relations story. As he is not a public figure Gawker was hammered for publishing it and retracted the story in the end.

I think the reporting on this blog is pretty much out of sync with the trend towards viewing privacy breaches as negative, even when the people involved were engaging in questionable (but not illegal) activities. Its for this reason I believe, not "fear or laziness" that pretty much no other news organization is covering this story now.

legalschnauzer said...

I know it isn't invasion of privacy, @5:01, because I've read the law on the subject. Like other statutes/torts, invasion of privacy has specific elements, and they aren't close to being present in the AM matter. I would suggest you educate yourself on the law because it probably isn't what you think it is.

The Hogan case has nothing to do with a change in attitudes on privacy. It is the take of one jury, which has no precedential value legally, and is likely to be overturned.

legalschnauzer said...

@2:28 -- My take on the Hogan case, for the most part, is in comment at @10:07.

One difference that might have swayed the jury in Hogan case: I haven't seen the tape, but I assume it was filmed in the privacy of someone's home, where in AM, people are putting their personal information on the Web.

Pretty big difference there, in my mind, and I suspect the filming location swayed the jury. Even so, I think there is a strong chance the Hogan verdict will be overturned.

If I were Hulk I wouldn't be spending my loot just yet.

Anonymous said...

And the Geithner case and the backlash over the invasion of privacy there?

legalschnauzer said...

Your question is way out of whack, @12:28. I haven't done a lot of research on the Geithner story, but my understanding is there is no "case" there -- as in a legal case. Also, invasion of privacy isn't an issue.

It looks like Gawker published a story and then pulled it when advertisers voiced concerns -- perhaps because Geithner works for the powerful Conde Nast publishing company. Again, you misuse the term "invasion of privacy." That is a legal term, with a specific meaning, and I don't see that it's a factor here, given there's no legal case involved. (Although, the gay escort who apparently was source of the story has sued Geithner and Conde Nast, I assume for defamation.)

This simply is a case of a story that some members of the advertising community (and maybe a few others) didn't like and voiced their displeasure, which they are entitled to do. Gawker caved, but one report says editorial employees at Gawker were unhappy the story was pulled, and they are entitled to feel that way. I see no connections to reporting on Ashley Madison.

legalschnauzer said...

Re: a point made at 5:01 -- how do you know Geithner isn't a public figure? Who made that determination? That's the kind of thing that usually is determined a civil case, but I'm not aware of one being involved.

Anonymous said...

This story is beneath you .. can we get back to posting more interesting topics such as the people that have done you wrong ? I wish you peace and happiness.

Anonymous said...

Tell yourself its advertisers that if you want, they weren't the ones fueling the backlash though were they, that was from normal people who don't like online gossip columns targeting private citizens.

legalschnauzer said...

I didn't tell myself it was advertisers; I researched the matter, and that's what multiple published reports said. I see no reason to believe you know what other people like or don't like. Besides that, I don't run Legal Schnauzer to be a people pleaser. I run it to report stories that I believe are important, that involve significant areas of law, that involve corruption/misconduct by elites, that often can't be found in other news outlets. LS has been ranked among the top 50 law blogs in North America, the only one on the list not affiliated with a law firm, law school, or legal/educational organization. That suggests a lot of people like it and find it interesting and enlightening. But for those who don't like it, there are several million other blogs they can read. And they are welcome to have it.