Photographer: ‘I’m on my own’

By Michelle Sullivan

A Lantern photographer who shot photographs of cows that escaped on campus two weeks ago now faces possible charges of criminal trespassing and, despite his requests, will likely not receive legal assistance from Ohio State or The Lantern.

OSU Police sent an e-mail to photographer Alex Kotran on Saturday asking him to schedule a time today or Wednesday when he can be questioned.

Kotran asked if either the university or The Lantern would provide him with an attorney and has yet to hire one himself. He is still not sure whether he will receive assistance from the university.

“I haven’t been given a clear answer,” Kotran said Monday. “I’m assuming that I’m on my own right now.”

In an e-mail to Officer William Linton on Monday, Kotran said “I am currently in the process of obtaining a criminal defense attorney, and will instruct him to contact you once I do.”

Linton is the officer who detained and handcuffed Kotran on April 21.

Lantern General Manager John Milliken said representatives of OSU Legal Affairs told him the university cannot provide Kotran with an attorney or the money for an attorney because it is a conflict of interest.

“We have had conversations related to the entire issue. It is fairly filled with conflicts and little nuances that make it very unique,” Milliken said. He said what makes this issue unique is that all parties involved are affiliated with the university.

OSU’s Legal Affairs Office generally does not respond to calls from Lantern reporters and refers all questions about its operations to Jim Lynch, director of Media Relations.

“The university generally cannot provide legal representation in criminal matters, even to employees,” Lynch said Monday.

Tom O’Hara, The Lantern’s adviser, sees things a different way.

“I find it odd that the university has the resources to pursue prosecution of a student who hasn’t done anything wrong, but it doesn’t have the resources to help defend a student who hasn’t done anything wrong,” O’Hara said.

Milliken said the case would be different if the issue involved a student facing criminal charges or being threatened with suit by a party outside the university. Still, The Lantern has no money budgeted for legal services for student staff members.

Some student media organizations do provide students with legal counsel when needed. For example, Louisiana State University has money in its budget for such cases, said Jim Shelledy, director of Student Media at LSU.

“We set aside $10,000 every year for legal contingencies that would be a little out of the ordinary,” Shelledy said. “The university covers us for libel cases.” He said that money comes from ad revenue and student fees.

Shelledy said the money could be used to hire an attorney to defend a student against criminal charges, but usually it does not reach the point where an attorney is needed.

Frank LoMonte, executive director of the Student Press Law Center, said cases in which university police press charges against student journalists are rare. He said it happens “maybe once a year.”

He also said it is fairly uncommon for a university to provide a student journalist with criminal defense counsel.

“My strong prediction would be that someone higher up in the university will recognize that this was a terrible mistake by the police and work to make it right,” LoMonte said.

Len Downie, former editor for The Washington Post, said he finds the actions of the various university employees involved in Kotran’s detainment and the university’s unwillingness to provide Kotran with legal representation outrageous.

“It is deeply disturbing to me as an alumnus of the School of Journalism,” said Downie, who served as The Lantern’s managing editor in the early 1960s.

The Lantern’s Publications Committee rejected a proposed resolution Thursday to have the School of Communication provide legal representation to student staff members when needed. But the committee agreed to seek information from the university on its policy of legal representation for Lantern staff.

Downie, who now serves as the Weil Family Professor of Journalism at Arizona State University, said this is unacceptable.

“I can understand the budget issues involved. But budget issues aside, in every other way, the school should be fully supportive of the student journalist,” Downie said.

Felecia Ross, chair of the committee, said the committee rejected the motion because of the way it was phrased, not because they did not support Kotran.

“We just did not want to make a decision before we have all the information,” Ross said.

Kotran and his family are in the process of finding an attorney.

Kotran’s father, Nick Kotran, called the incident “a shame” and said he believes “it should never have happened.” But he was reluctant to say whether his family or the university should be responsible for hiring an attorney for Alex.

“I am not worried about who is going to pay for it,” Nick Kotran said.
“I am going to do whatever it takes to get this settled. We are
working to get this dropped and then we’ll worry about money.”

Lantern photographer cuffed, detained

By Byron Edgington

Jay Smith / The Lantern

Lantern photographer Alex Kotran takes a picture of one of the loose cows in Lincoln Tower Park last Wednesday. Kotran was detained by OSU Police shortly afterward.

Alex Kotran

When two cows got loose last Wednesday, Lantern photographer Alex Kotran hustled to his room in Lincoln Tower. He had heard about the commotion, grabbed his professional camera gear and ran to the athletic fields next to Lincoln Tower.

Within two hours, Ohio State Police had caught the cows – and Kotran. He was detained, handcuffed and is facing a misdemeanor charge of criminal trespass.

As Kotran reached the athletic fields where the cows were being chased by police and OSU workers, a woman wearing a School of Agriculture shirt confronted him, he said. It was 2 p.m.

She told him that he was not allowed to take photos of attempts to corral the cattle. She tried to block him from taking photographs, he said.

Kotran explained that he was a photographer for The Lantern, that where he was standing was public property, and that if she wanted him to stop taking photos, she should summon police.

That’s exactly what she did.

Shortly, OSU Officer William Linton approached Kotran and told him that he could not take photos from where he was standing because it was dangerous. Kotran explained that he was a member of the media and that it was public property.

At the time, several officers and OSU workers were on the field chasing the cows. Kotran was nearly 100 yards away from the action.

Nonetheless, Linton ordered him to leave that location, and Kotran complied.

He moved to the other side of the field behind a chain-link fence and continued to shoot photos. It was 2:10 p.m.

At that location, a female RPAC employee and two male workers with grounds keeping also confronted Kotran and told him to stop taking photos.

One of the men grabbed his arm. He gave them the same explanation he gave Linton and continued to shoot photos.

Two of his shots from that location were on the front page of Thursday’s The Lantern.

At some point, one of the cows fled and ended up cornered by police near Vivian Hall. Kotran ran from the athletic field toward Vivian to get more photos.

Near the driveway to Vivian Hall, he saw an OSU police officer blocking the parking lot entrance. He entered Vivian Hall through the Fyffe Road front door, and then left through a back door, stopping about 50 yards from the cornered cow.

Kotran, a first-year in business and political science from Copley, Ohio, started shooting again when a police officer drove up and told him to leave the scene.

As Kotran turned to leave, Linton ran up, stopped him and cuffed him. It was about 2:40 p.m.

“He told me I was under arrest,” Kotran said. “I advised him that I was on public property, and he started talking about Supreme Court cases and stuff.”

Kotran said he was detained “for about 10 minutes.” Linton went through his pockets to get his wallet. The officer needed identification to write a report.

During that time, other OSU Police fired several shots at the cow, according to news reports.

In a phone interview, Deputy Chief Richard Morman said that “the animal was agitated. The tranquilizer was needed, but if that didn’t work, we determined that deadly force was an option.”

The animal was finally tranquilized after 15 minutes.

An OSU incident report released Monday does not include a
description of the events. It lists eight witnesses and the charge against Kotran.

In an e-mail to The Lantern on Sunday, OSU Campus Police Chief Paul Denton said the department is still investigating the incident.

“I consider the case as an open and active investigation, and we are not going to hurry the process,” Denton said. “Also, as I stated, while there may have been a detention, no arrest was made, so use of the term to describe police and public safety intervention is not correct.”

Frank LoMonte, executive director of the Student Press Law Center in Arlington Virginia, commented on the case.

“Unless the police can prove that [Kotran] was contributing to the hazard,” Lomonte said, “the student has every right to take photographs.”

Last May, an Ohio University student photographer, Eric Jones, was handcuffed and arrested by Athens Police while photographing a disturbance at a city festival.

Jones pled no contest to the charges, which are both second-degree misdemeanors. He was sentenced to 90 days in jail, a fine of $750, two years probation and court costs, according to a September report in The Athens News.

By Tim WuPosted Wednesday, April 28, 2010, at 4:04 PM ET (Slate)

In 1971, the New York Times got a hold of a secret Defense Department report on the Vietnam War and began to publish excerpts. The Nixon administration promptly sought to enjoin the Times and stop publication. The leaker, Daniel Ellsberg, was subject to a CIA-aided effort to gain access to his medical files and was also prosecuted for espionage, theft, and other crimes.

These days, we tend to be a little less intense. This week, police raided the California home of Gizmodo editor Jason Chen not to seize secret papers but, rather, in search of information about a 4G iPhone that was (proverbially) left in a bar. It is not the Nixon White House but, rather, Apple that is seeking to punish the journalists. The fracas is, of course, about not state secrets but Steve Jobs’ secrets.

This doesn’t make the iPhone case mere entertainment. There’s a real First Amendment question at stake. Gizmodo, an online “gadget guide,” published photos and reviews of the iPhone, which hadn’t been released, after a tipster picked it up on a barstool. In other words, the site published truthful information about a matter of public interest. Apple wants to enlist the government to punish the supposed miscreant. Can such aggression toward journalists on behalf of private power be justified? I’d say no.

Since trying to pull back something posted on the internet seems pointless, Apple hasn’t tried to stop Gizmodo from publishing its stories. Rather, Apple appears to want to punish Gizmodo for its effrontery; perhaps, in its view, police should arrest the site’s writers and editors and hurt them with fines or, possibly, imprisonment. Apple has indicated it believes a serious felony was committed. The company appears to regard Gizmodo’s acts as larceny, or misappropriation of trade secrets, or both. Here is where the case gets serious: If we accept that journalists can be punished severely for publishing information gained by others in unsavory ways, that’s a bad thing for journalism. Nearly every truly big story, from the Abu Ghraib photos on down, involves a leaker of some kind, often one who has broken some law.* If the publishers of such materials—as opposed to the leakers—are treated as criminals, journalism will suffer.

Most of the press coverage and blogging has focused on the narrow question of whether the search of Jason Chen’s home was legal or not. But the deeper question is whether a criminal prosecution can be pursued consistent with the First Amendment. That turns, in part, on whether Gizmodo is actually breaking the law. Lots of the commentators have assumed it is, based on a theory of larceny. In California, as in many states, it is larceny when you permanently hold on to property that you have reason to know does not belong to you. But it is not quite so clear that Gizmodo—as opposed to the guy who supplied the site with the prized phone—has committed larceny. The peddler of the iPhone, who got $5,000 for his trafficked good, is clearly a thief of some kind. But Gizmodo, for one thing, says it wants to give the telephone back, and so it may lack any intent to possess the phone permanently. That matters, legally speaking.

And here’s why the First Amendment is relevant: The Supreme Court has suggested that the Constitution protects publishers against punishment for another’s theft of information. In the 2001 case Bartnicki v. Vopper, a radio show broadcast an illegally recorded cell-phone conversation between a union negotiator and the union’s president. The Supreme Court held it illegal to punish the broadcaster. As Justice John Paul Stevens put it for the majority, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Justice Stevens also said that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Read that again, and you’ll realize that is precisely what’s going on here. Apple is asking for punishment of the publisher of truthful information.

Now set aside the constitutional question, and trade secrets, and whether the prosecution could win its case before a jury, and ask yourself the real question in all criminal cases—is the prosecution warranted? Why are the police issuing search warrants, which is only done based on probable cause of a crime? We know Apple doesn’t like having its iPhone dissected before the world—it is embarrassing, though the company could have had a sense of humor about the whole thing. And the disclosure may gain Apple’s competitors some advantage. But so what? Does the story of the iPhone that walked into the bar really justify prosecution of journalists?

Sure, the level of gravitas here is different than it would be if we were learning about the Pentagon’s bombing of Cambodia. But there is something unsavory about sending the police after journalists whose so-called crimes are borderline at most. Apple is one of the most influential and powerful companies of our age. At a moment of increasing private power, journalism is more important as a check not only on the public sphere but the private one. As it stands, the press in all its forms hardly does that job well. It does not need another shackle.

One small tip for Gizmodo, though: If you haven’t already, send that phone back.

Like Slate on Facebook. Follow us on Twitter.

Correction, April 28, 2010: The article originally referred to “the al-Qaida photos” instead of the Abu Ghraib photos. (Return to the corrected sentence.)

Journalist shield law may not halt iPhone probe

by Declan McCullagh and Greg Sandoval

The criminal investigation into Apple’s errant iPhone prototype took a new twist this week, when Gawker Media claimed that the warrant used by police to search an editor’s home was invalid.

It’s clear that federal and state law generally provides journalists–even gadget bloggers–with substantial protections by curbing searches of their employees’ workspaces. But it’s equally clear that journalists suspected of criminal activity do not benefit from the legal shields that newspapers and broadcast media have painstakingly erected over the last half-century.

No less an authority than a California appeals court has ruled that the state’s shield law does not prevent reporters from being forced, under penalty of contempt, to testify about criminal activity, if they’re believed to be involved in it.

Gizmodo editor Jason Chen in a video embedded in his April 19 post titled “This is Apple’s next iPhone.”

(Credit: Gizmodo/Screenshot by CNET)

California law does not prevent “newspersons from testifying about criminal activity in which they have participated or which they have observed,” the court ruled in a 1975 case involving the Fresno Bee.

Eugene Volokh, a professor at the University of California at Los Angeles who teaches First Amendment law, says that court decision–the case is called Rosato v. Superior Court (PDF)–means that California’s state shield law “wouldn’t apply to subpoenas or searches for evidence of such criminal activity.”

Translated: If Gizmodo editors are, in fact, a target of a criminal probe into the possession or purchase of stolen property, the search warrant served on editor Jason Chen on Friday appears valid. A blog post at NYTimes.com on Monday, citing unnamed law enforcement officials, said charges could be filed against the buyer of the prototype 4G phone–meaning Gizmodo.

In the Fresno Bee case, the judges noted that the attorney-client privilege, the physician-patient privilege, and the psychotherapist-patient privilege are circumscribed during criminal investigations of lawyers, doctors, and therapists. Each of those privileges is stronger than the limited immunity that California extends to journalists.

Editors at Gizmodo, part of Gawker Media’s blog network, last week said they paid $5,000 for what they believed to be a prototype of a future iPhone 4G. The story said the phone was accidentally left at a bar in Redwood City, Calif., last month by an Apple software engineer and found by someone who contacted Gizmodo, which had previously indicated that it was willing to pay significant sums for unreleased Apple products. Other gadget blogs were contacted too, including Engadget, and the criminal probe appears to be widening.

That criminal investigations can surmount journalist protection laws should come as no surprise. “It would be frivolous to assert–and no one does in these cases–that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws,” the U.S. Supreme Court has said. “Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.”

Under a California law dating back to 1872, any person who finds lost property and knows who the owner is likely to be–but “appropriates such property to his own use”–is guilty of theft. There are no exceptions for journalists. In addition, a second state law says any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year.

Knowing that an item probably belonged to someone else has led to convictions before. “It is not necessary that the defendant be told directly that the property was stolen. Knowledge may be circumstantial and deductive,” a California appeals court has previously ruled. “Possession of stolen property, accompanied by an unsatisfactory explanation of the possession or by suspicious circumstances, will justify an inference that the property was received with knowledge it had been stolen.” (California law says lost property valued at $100 or more must be turned over to police.)

Stephen Wagstaffe, chief deputy district attorney for San Mateo County, did not return phone calls. CNET was the first to report the existence of an investigation last Friday.

The journalists-accused-of-crime loophole

A federal newsroom search law also does not protect journalists accused of a crime. The 1980 Privacy Protection Act says, in general, it is unlawful for state, local, or federal police to search newsrooms. Criminal proceedings targeting reporters are the exception.

Congress enacted the PPA after police obtained a warrant to search the Stanford Daily’s newsroom for photographs of a clash between protesters and police, and the U.S. Supreme Court concluded that the search was constitutional. The purpose was, in that heady post-Watergate era, to force the use of less intrusive subpoenas instead of search warrants–while allowing searches in which journalists were the ones suspected of the crime.

The PPA does limit police searches for journalists’ “work product materials” and “documentary materials.” But both terms are defined to exclude anything, such as a computer or phone, that “has been used as the means of committing a criminal offense.” Prosecutors looking to charge Gizmodo employees with a crime–and, again, that has not happened–would surely say that the MacBooks and other seized property were used to illegally obtain what’s being called the “4G” iPhone.

In another twist, a subsequent Supreme Court court decision calls into question the constitutionality of the entire PPA, according to Volokh, the UCLA law professor. The justices ruled in 1997 that the federal Religious Freedom Restoration Act, which trumped local ordinances, “contradicts vital principles necessary to maintain separation of powers and the federal balance.” Volokh says a federal law limiting the authority of local prosecutors to obtain search warrants might fall into the same category.

“If I were prosecuting, I’d go after (any blogger who bought the phone) vigorously,” said Michael Cardoza, a prominent San Francisco defense attorney and former prosecutor. “I’d fight them tooth and nail to see that they wouldn’t get protection under the shield law. I’d play hardball, in this case. They didn’t find the phone as part of their reporting but instead bought property that they knew or should have known wasn’t the property of the seller.”

To be sure, the California newsroom search law does not explicitly permit searches of journalists suspected of a crime. And no court appears to have ruled directly on this topic.

But state courts have spent decades whittling away at protections for journalists in other areas, ruling that journalists can be required to testify in court when they’re party to a lawsuit, that they can be forced to disclose information when they’re not directly engaged in news gathering, and that they can be compelled to reveal the names of attorneys who leaked sensitive documents about murders. (Timothy Alger, now Google’s deputy general counsel for litigation, wrote a 1991 law review article describing some of these exceptions. Its subtitle: “The Illusory Newsgatherer’s Privilege in California.”)

Orin Kerr, who teaches computer crime law at George Washington University, told CNET that he wouldn’t be surprised if a state court follows suit and “read an implied exception for journalists involved in crimes.”

Declan McCullagh writes about the intersection between law and technology for CNET and can be reached at Declan.McCullagh@cbs.com. Greg Sandoval writes about digital media for CNET and can be reached at Greg.Sandoval@cbs.com.

Declan McCullagh has covered the intersection of politics and technology for over a decade. E-mail Declan.

Greg Sandoval covers media and digital entertainment for CNET News. He is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at http://twitter.com/sandoCNET.

Topics:

Legal

OverREACTing: Dissecting the Gizmodo Warrant

Legal Analysis by Matt Zimmerman

Federal and California law both protect reporters against police searches aimed at uncovering confidential sources or seizing other information developed during newsgathering activities. Yet on Friday, agents with the Rapid Enforcement Allied Computer Team (REACT) executed a search warrant at Gizmodo editor Jason Chen’s home, searching for evidence related to Gizmodo’s scoop on what appears to be a pre-release version of Apple’s next iPhone model. The warrant does not reveal whether Chen himself is considered a criminal suspect, or what alleged crime the police are investigating, but Chen was not arrested. All of his computers and hard drives (among other materials) were seized for further search and analysis.

Under California and federal law, this warrant should never have issued. First, California Penal Code Section 1524(g) provides that “[n]o warrant shall issue for any item or items described in Section 1070 of the Evidence Code.” Section 1070 is California’s reporter’s shield provision (which has since been elevated to Article I, § 2(b) of the California Constitution). The items covered by the reporter’s shield protections include unpublished information, such as “all notes, outtakes, photographs, tapes or other data of whatever sort,” if that information was “obtained or prepared in gathering, receiving or processing of information for communication to the public.” The warrant explicitly authorizes the seizure of such protected materials and information, including the photographs and video taken of the iPhone prototype, as well as research regarding the Apple employee who purportedly lost the phone. This fact alone should have stopped this warrant in its tracks.

Second, the warrant likely violates the Privacy Protection Act (or PPA, 42 USC § 2000aa et al.). Congress passed the PPA to ensure special protection for journalists by prohibiting government search and seizure of both “documentary material” (explicitly including photos and video) and “work product material,” material which is or has been used “in anticipation of communicating such materials to the public.” 42 USC § 2000aa-7(a) and (b). The PPA includes an exception for searches targeting criminal suspects (which Chen may or may not be), but that exception does not apply “if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein.” 42 USC § 2000aa(a)(1). Violations of the PPA could render the law enforcement agencies or the individual officers who searched Chen’s house liable for damages no less than $1,000.

The purpose of the PPA and state shield law is to prevent police from rummaging through sensitive information contained in a reporter’s notes and communications. This search warrant is particularly worrisome on this point because it is so plainly overbroad. An officer seeking a search warrant must demonstrate to the issuing judge both probable cause that a crime was committed and that there is a reasonable basis to conclude that the materials sought and searched are relevant to that crime. The warrant issued in the Chen case was remarkably broad, seeking “all records and data located and/or stored on any computers, hard drives, or memory storage devices, located at the listed location.” That a computer or hard drive may be capable of storing information relevant to the case is not enough. Unless the warrant application provided a factual basis to tie Chen’s computer (and “digital cameras,” “display screens,” “mice,” “cassette tapes,” “CD-ROM disks,” etc.), any information obtained from them could be thrown out. Furthermore, the Ninth Circuit Court of Appeals (the federal appellate court for California and the surrounding states) in its 2009 opinion in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009), identified a series of guildelines meant to ensure that even otherwise lawful warrants authorizing the search and seizure of computers do not give officers too much access to private data that might be intermingled with evidence of a crime. This warrant does not appear to comply with those guidelines.

The police appear to have gone too far. The REACT team, “a partnership of 17 local, state, and federal agencies” with a “close working partnership with the high tech industry,” seems to have leapt eagerly to Apple’s aid before it looked at the law. Putting the presumed interests of an important local company before the rights guaranteed by law is an obvious occupational hazard for a police force charged with paying particular attention to the interests of high tech businesses. Now that First Amendment lawyers, reporters, and others have highlighted the potential legal improprieties of this search, the task force should freeze their investigation, return Chen’s property, and reconsider whether going after journalists for trying to break news about one of the Valley’s most secretive (and profitable) companies is a good expenditure of taxpayer dollars.

[Colorado Law Professor Paul Ohm has more on this issue at Freedom to Tinker, in particular looking at the effect of Comprehensive Drug Testing on this search.]

Related Issues: Free Speech, Intellectual Property