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By Justin Silverman

Kansas City Star reporter Alan Bavley had a hunch. After years of investigating the health care industry, Bavley began to suspect that state medical boards did not adequately discipline doctors who committed malpractice. Physicians battling substance abuse, for example, were punished far more harshly.

“I wanted to find doctors who were malpractice ‘frequent fliers’ and check to see if they had been disciplined, but I never had enough time to develop a viable strategy,” Bavley said in a recent interview. “So the story languished on my bucket list.”

Earlier this year, however, Bavley read a report (.pdf) byPublic Citizen that included data on undisciplined doctors who had multiple malpractice payouts. Many of these doctors worked in Kansas and Missouri, the states Bavley covered for the Star. The information came from the “Public Use File” of a government database called the National Practitioner Data Bank(“NPDB”). Since 1986, the NPDB provided medical professionals with information on specific physicians that included malpractice claims or disciplinary cases. The Public Use File contained this data as well, though it did not list physicians by name. Still, in the words of ProPublica‘s Charles Ornstein, the file “enabled reporters across the country to write stories that exposed serious problems with patient care and patient safety.” After learning about this file, Bavley used it to help affirm his hunch and he wrote an enterprising story about the reluctance of state regulators to discipline doctors with penchants for malpractice.

What would otherwise be a celebrated victory for open records and the journalists who use them has now become a fight against the Obama Administration for removing that Public Use File. The U.S. Dept. of Health and Human Services (“HHS”), which runs the NPDB, removed the file on Sept. 1 after a complaint by a neurosurgeon mentioned in Bavley’s story who believed the Star reporter misused the site’s confidential information. Worse, the agency wrote a letter (.pdf) to Bavley that threatened $11,000 or more in fines if he did in fact do so. (Bavley said that the doctor’s name came from the family of a patient who is now pursuing malpractice claims against him — not that it should matter, as I explain below.) Despite protest by groups such as the Association of Health Care JournalistsInvestigative Reporters & Editors, and the Society of Professional Journalists, the public database remains off-limits.Researchers can now only request data, and such requests can be denied.

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By Justin Silverman

This opinion (.pdf) was filed yesterday, though I can’t make sense of the decision. Score one for transparency.

By Justin Silverman

Law students are invited to a free all-day media law workshop on Oct. 18 at Boston University. The event is sponsored by the Reporters Committee for Freedom of the Press, the New England Center for Investigative Reporting and the BU College of Communication. It will be held from 9 a.m. until 4 p.m. at BU’s Photonics Colloquium Room at 8 St. Mary’s Street, 9th Floor. Those who are interested can RSVP by contacting Maggie Mulvihill at 617.353.9097 or emailing mmulvih@bu.edu.

According to a flier (.pdf) for the event:

Journalists throughout New England working in digital media are invited to participate in a free, daylong media law workshop taught by executive legal staff at the Reporters Committee for Freedom of the Press and hosted by the New England Center for Investigative Reporting. The workshop is designed specifically for journalists working at nonprofit investigative journalism websites and other working journalists whose work appears in a digital format.

Topics include:

 • How to use state and federal public record and meeting laws

• Libel online, and how to avoid it

• Advice for covering riots and demonstrations

• What to do if you’re subpoenaed for your sources, notes, video, etc.

• What to do if officials try to search or confiscate your computer

• Steps to take if a judge kicks you out of the courtroom

• What to do if the government orders you not to publish

While the event is geared toward journalists, Maggie told me that law students are invited as well. Judging by the topics to be addressed, it seems like a great event for any student interested in media law.

By Justin Silverman

It used to be that mugshots were kept well out of the view.  Despite being public records in many states, walls of bureaucracy and simple physical inaccessibility (due to the photos being locked in a police station somewhere) kept them largely out of the public eye.

But the Internet has changed that.  Now, those same photos are uploaded to the web on tens, maybe even hundreds, of police and sherriff websites, giving rise to two new online businesses: the mugshot aggregation website and its opposite number, the mugshot removal website. But as David Kravets wrote in Wired, the interaction of these two types of website is more complicated than it seems. And their dealings call into question the reluctancy of states to centralize public records online in the first place.

Kravets explains that reputation companies, like RemoveSlander.com, are players in an emerging “mugshot racket” that feature websites with millions of photos and a convenient way to remove them: money. For $399, RemoveSlander will remove a mugshot featured on the popular — but apparently unaffiliated — site, Florida Mugshots, for example. According to the article, the company does this by paying part of that fee to the mugshot site’s owner. “On the surface, the mug-shot sites and the reputation firms are mortal enemies,” Kravets wrote. “But behind the scenes, they have a symbiotic relationship that wrings cash out of the people exposed.”

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By Justin Silverman

In what is now their widely publicized exchange, U.S. Seventh Circuit Judge Richard Posner took attorney Richard O’Brien to task last week for arguing that the Illinois eavesdropping statute should be stricken as unconstitutional (audio here). The statute criminalizes the audio recording of non-consenting parties, even if they are public officials conducting official business in public view.

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

About a month after the U.S. Court of Appeals for the First Circuit declared the public recording of police to be a basic, vital, and well-established liberty, the American Civil Liberties Union of Illinois is now fighting to preserve that freedom in ACLU v. Alvarez (in which the Citizen Media Law Project has filed an amicus brief). During last week’s arguments, the critical and often snarky judge not only said that an increased surveillance of public officials is a “bad thing” but also expressed concern about “snoopers” interfering with investigations courtesy of curiosity and a tape recorder. Posner’s apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner’s comments smack of condescension for journalists.

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By Justin Silverman

The U.S. Department of State maintains a list of organizations it believes engage in terrorist activity, and under federal law it is illegal to provide material support to them. The intent is to stifle any assistance given to these groups and to dry up the financing needed to further their individual causes. If the recent arrest of a 24-year-old in Virginia is any indication, however, “material support” could also include the exercise of speech protected by the First Amendment.

According to the FBI, Jubair Ahmad uploaded a video to YouTube last year that included images of armored trucks being hit by IEDs, footage of leaders from the terrorist group Lashkar-e-Tayyiba (“LeT”), and the audio of a prayer which references “mujahideen” and “jihad.” In a second version of the video, Ahmad showed pictures of dead men on the ground, one with a bullet hole in his neck. Other pictures showed Abu Ghraib and U.S. soldiers with an attack dog. Ahmad’s YouTube account is now suspended and his video cannot be viewed. Based on the FBI’s description of the video, however, it doesn’t appear that he called for violence but instead intended “to promote the spread of terror.”

“…Jubair provided material support to LeT by producing and posting an LeT propaganda video glorifying violent jihad,” wrote the FBI in an affidavit supporting Ahmad’s arrest. “…Terrorist organizations such as LeT, and movements affiliated with them, use the Internet and other media as part of well orchestrated propaganda campaigns.”

Knowing that producing propaganda is not a crime, the FBI explained in its affidavit that Ahmad trained in a Pakistani terrorism camp before traveling to the United States. It also detailed conversations Ahmad had with the son of an LeT leader about how to better edit subsequent videos. These circumstances, the FBI believes, make criminal what would otherwise be protected speech.

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By Justin Silverman

William Lawrence Cassidy joined Kunzang Palyul Choling (KPC), a Maryland-based Buddhist organization, in 1997, claiming to be a reincarnated Buddhist and to be suffering from lung cancer. According to The New York Times, he accepted medical assistance from the group, briefly worked in its executive ranks, and developed a close relationship with the group’s leader, Alyce Zeoli.

His relationship with Zeoli and other members, however, soon unraveled. Colleagues found out that Cassidy didn’t have cancer as he claimed and they began questioning his credentials. According to the FBI, Zeoli, who spent time with and confided in Cassidy, frequently rebuked his sexual advances. Ultimately, Cassidy left the group, moved from Maryland, and settled in Lucerene Valley, California.

From his new home, Cassidy began lashing out at Zeoli and KPC on Twitter. Apparently ignoring such basic Buddhist tenants as showing compassion and avoiding gossip, Cassidy tweeted about Zeoli’s alleged sexual promiscuity (“…reputed ex-prostitute…”), impugned her leadership (“…a demonic force who tries to destroy Buddhism”), and called for Zeoli to kill herself. He also attempted haiku (“Long limb, sharp saw, hard drop”) and made fat jokes that even third-graders would dismiss as lame (“…so fat if she falls & breaks her leg gravy will spill out”). His tweets – all 8,000 of them – ranged from morbid to juvenile, outrageous to odd.

Because of those tweets, Cassidy is now being prosecuted under the federal anti-stalking statute, a law criticized as being, among other things, unconstitutionally vague. A provision of the statute makes speech a crime if it causes “substantial emotional distress” to another person. It does not require a consideration of the speech’s content, but can be violated based solely on the effect it has on the listener. Further, the statute appears to broaden the scope of previous anti-stalking laws from speech directed to a specific individual to words spoken to the public at large. In other words, it doesn’t distinguish between making a harassing phone call to a person and conveying the same message publicly on a Twitter account.

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By Justin Silverman

When the Bay Area Rapid Transit (BART) shut down cell phone service at various train platforms on Aug. 11, it did more than prevent the protests it expected to occur at its stations. The shutdown also sparked a national debate over whether such an agency can constitutionally interfere with the public’s ability to communicate via phone and Internet, and if so, under what circumstances. What may seem at first blush like a state’s desire to remove a leaflet from one’s hand or to silence the words from one’s mouth, is ultimately a more complicated matter involving several areas of law. 

A summary of the situation: Protestors began using train stations last month to voice their anger over the killing of a homeless man by BART officers on July 3. In one demonstration, protestors gathered at the Civic Center Station in San Francisco on July 11 where,according to BART, at least one person climbed on top of a train and others blocked train doorways and held train doors open. Other stations were completely or partially shutdown as a consequence. When BART officials learned that a similar protest may have been planned for Aug. 11, they decided to block all cell phone service at certain spots on the railway. The unprecedented action intended to prevent potential protestors from using social media to help others avoid police while demonstrating.

Whether or not BART’s interference actually prevented such a protest is uncertain. What it did do, however, was spark the outrage of commuters, civil libertarians, and the activist group Anonymous, among others. Many of these critics now compare BART to the oppressive regimes that tried to squelch recent uprisings in the Middle East. One popular Twitter hashtag, #MuBARTek, compares the transit authority with Egyptian president Hosni Mubarak, who earlier this year oversaw a massive Internet shutdown ahead of planned protests in Cairo. As unfair as the comparison may be, it does highlight the apparent hypocrisy of a country touting social media as a matter of foreign policy, while allowing a state agency to shutdown that expression at home.

“We’re watching how China has responded to new technologies, how Iran has responded to new technologies, Egypt and other countries,” said attorney Marvin Ammori, a visiting scholar at Stanford Law School’s Center for Internet & Society, on a recent Lawyer2Lawyer podcast. “It is a pillar of our foreign policy, that we believe in tools that connect people and that promote freedom of speech elsewhere, and we really need to live up to that here.”

In the context of BART and the First Amendment, leading experts disagree as to whether we are living up to the standard described by Ammori. Compare Professor Eugene Volokh with Abdi Soltani of the Northern California ACLU, for example. Though phone service shutdowns to prevent protests have yet to be addressed by the courts, there is a significant amount of caselaw that can help put BART’s actions into perspective. Most relevant are decisions related to prior restraints and the public forum doctrine.

“We’re not going to throw out 220 years’ worth of thinking about the way we communicate with each other and the way we express ourselves, the way we petition government for change, the way we assemble,” said Gene Policinski, executive director of the First Amendment Center, on NPR’s Talk of the Nation. “So while the technology is a new wrinkle, I think we can look to a lot of settled law and principles that we hold dear to really guide us through this.”

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By Justin Silverman

The controversial Massachusetts wiretapping statute is the center of a new class action lawsuit involving what the plaintiffs argue is the illegal scanning of emails sent to Gmail accounts.

MGL Ch. 272 § 99 is perhaps best known for criminalizing the secret recording of in-person conversations without the consent of all parties to that conversation, a “two-party” requirement that often leads to conflicts when citizens record police officers. The law, however, also prohibits the interception of any wire communication without the consent of all parties to that communication.

“Google now uses a new advertising system dubbed ‘interest-based advertising’,” according to the complaint. “Instead of basing advertising off of keywords found in a single email… Google intercepts, discloses or scans numerous emails exchanged between non-Gmail users and Gmail users.” Because those non-Gmail users did not consent to this scanning, the argument goes, Google is violating the wiretapping statute and the privacy interests of the plaintiffs.

A CNET article on the lawsuit quotes Google as saying: “We’re not going to comment on the ongoing litigation. But to be clear, Gmail has from the beginning used automated scanning technology to show our users relevant advertisements that help to keep our services free.”

The wiretapping statute was enacted to allow law enforcement to listen to the private conversations of those suspected of organized crime, and to protect everyone else from having their private conversations recorded. Most states have similar statutes, but allow for such recordings or “interceptions” if only one party to the conversation consents. Massachusetts is in the minority of states that require consent from all parties, which often leads to cases involving the recording of police, and, perhaps now, the scanning of emails. Though I haven’t read the Gmail terms of service, I assume there is a provision that permits such scanning of emails sent and received from Google accounts. Though other privacy arguments against such scanning abound, such consent from a Gmail account holder is likely sufficient under the wiretapping statutes of “one-party” states.

Either way, Google’s explanations seem to be doing little to assuage the public’s unease with the practice.

Justin served as founding president of Suffolk Media Law. He graduated from Suffolk University Law School in 2011. You can follow Justin on Twitter at @MediaLawMatters or visit www.justinsilverman.com.

By Justin Silverman

The U.S. Supreme Court decided this week to hear FCC v. Fox Television Stations, Inc., the “fleeting expletives” case that involves the broadcast of profanity and nudity at times children are most likely to be watching. The U.S. Court of Appeals for the Second Circuit last year found the FCC’s policies on profanity and nudity at the time to be too vague to enforce.

Most of the incidents prompting the case involved the fleeting and unscripted use of the word “fuck.” Cher used it in 2002 during the Billboard Music Awards. Paris Hilton said it the following year during the same award show. Bono also used it in 2003, that time during the Golden Globe Awards. They all used the word in a different way, none using it with sexual connotations. In fact, they all used the word as most foul-mouthed people do, myself included. Can’t find a more elegant way of emphasizing your point? Fuck it.

For better or worse — and probably, worse — the word is a part of American parlance. It is used in different ways to express many different things. It may be harsh on the ears to some, but as most broadcasters will argue, it is impossible to accurately depict a World War II battlefield in Saving Private Ryan without the dropping of F-bombs. The word has value. If not for accuracy in historical dramas or news reports, then its value is in the ability to witness genuine, off-the-cuff and off-the-script comments such as “fucking brilliant” — words interpreted by fans of Bono as “thank you.” The FCC policies in question are so vague, the U.S. Court of Appeals found, that broadcasters could not easily determine what uses of the word would be fined. Therefore, those broadcasters self-censored.

That vagueness may be due to the varying meanings of the word itself. How can the FCC properly regulate a word that is used so many ways and in so many contexts? Interpretation is an important factor in “fuck.” The above scene from “The Wire” is illustrative. Officers Bunk and McNulty investigate a murder using only the word “fuck” or derivatives of the word. They still manage to convey more meaning than the “fuck” our regulators are afraid of children hearing. At least that’s my interpretation.

Clearly, not all “fuck”s are the same and a policy that cannot easily distinguish them will be rightfully reconsidered. But where should the FCC draw the lines? How should it draw them? Should it even be drawing lines at all?

Stay tuned.

Justin served as founding president of Suffolk Media Law. He graduated from Suffolk University Law School in 2011. For more information please visit JustinSilverman.com.

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