Category Archives: intercept

Bartnicki v. Vopper, Intercept’s Whopper


I have had occasion, as have many others, to speak critically about the online publication Intercept that is  run by Glenn Greenwald and financed by the multi-billionaire Pierre Omidyar   I have pointed, for example,  to the many instances of anti-Semitic postings on that site.  Now I am putting these larger concerns aside to call attention to a very flagrant, deliberate and obvious misrepresentation that can in no way be described as a matter of opinion.

The posting in question is by Greenwald’s associate Micah Lee.  He writes about the legal issue of whether news organizations can freely reproduce materials that have been stolen or otherwise illegally obtained.  Greenwald has always vociferously maintained that he has the right to do this, without limitation.  The occasion in the Lee  article is the recent leak of Sony documents.

Lee writes as follows:

Sony should realize that journalists are completely within their legal rights to report on documents that are illegally obtained as long as the journalists themselves don’t break laws to obtain them.

The 2001 Supreme Court case Bartnicki v. Vopper found that: “A broadcaster cannot be held civilly liable for publishing documents or tapes illegally procured by a third-party.” Perhaps Sony’s lawyers should look it up.

Now in contrast to Lee, Bloomberg LAW describes the BvV case as follows:

Synopsis of Rule of Law. The anti-wiretapping laws make it illegal to disclose the content of a conversation which was itself illegally intercepted. However, if these provisions are made to apply to the disclosure of information which has been obtained in a legal way from the party which intercepted the conversation, and if the information relates to some matter of public concern, the said provisions violate the First Amendment.

In other words, according to Bloomberg, the court in BvV made its findings contingent on the particular circumstance of that case, i.e. a  “matter of public concern.” The opinion in BvV is not, pace Lee, a general permission to publish stolen documents but rather a finding that is limited to the circumstance of that case.

The question arises, for Sony or any other such case, whether and how the findings in BvV would apply.  (As we shall see, BvV most likely does not apply.)  By failing to mention the case-specific limitations  of BvV,  Lee fundamentally distorts court holdings concerning the legality of publishing secret materials.

If you were to ask an attorney to advise you on this (or any) case, how would he approach the problem ?

Much of first year law school is devoted to instructing students on  “Shepardizing”  cases,  i.e. on  studying how the courts have applied  or have failed to apply a given case to other cases.  Now quite a few legal scholars have done this “Shepardizing” for BvV.  As a result of these scholarly analyses  we know to a reasonable degree of certainty how and whether a court would apply  BvV  to  Sony.  As I read these studies, the courts would uphold the Sony claim for privacy.  Others may well disagree, but Lee is clearly misleading when he suggests that the case is one of slam dunk on the side of license to publish stolen documents.

Among the several studies on the topic, at least two are representative of the prevailing legal opinion.  One is by Shoop (available through law libraries), the other by Easton (on the open internet).  (See the references below.)  Easton in particular (p. 334) makes it quite clear that B v S would not apply to Sony. 

Unfortunately,  Lee’s article  is typical of the systematic distortions found all over Intercept.  Lee’s piece differs from the many others  only in that its falsity is so glaring and so obvious to anyone who cares to do the research.  The founder and current leading spirit of Intercept, Glenn Greenwald,  was a licensed attorney (he no longer is) before he became the ultra-Left publicist that he is today. It is obvious that Intercept and its staff  know very well how to interpret a court case.  The fact that they tell the public the opposite of what they must know to be true, IMHO, is indicative of  the whole sorry nature of the Intercept enterprise.



Eric Easton, Ten Years After: Bartnicki v. Vopper as a

Laboratory for First Amendment Advocacy and

Analysis, University of Baltimore, Legal Studies Research Paper No. 2012-5


Richard D. Shoop, Bartnicki v. Vopper, 17 Berkeley Tech. L.J. 449 2002


The Odd Mr. Omidyar



Pierre Omidyar,Publisher of First Look Media

The multi-billionaire Pierre Omidyar, in his First Look Media, has used his financial prowess to create something new in the world of American media.  In the guise of performing a public service he has, in fact, created its very opposite:  a very well-heeled, monolithic propaganda machine solely devoted to an anti-America ideology.  And by rigidly excluding any conceivable differing viewpoint, he has created in the world of ideas what our anti-trust laws seek to outlaw in the larger world of commerce, i.e. a vehicle in restraint of free trade.

But Omidyar’s self-description of his aims and motives  is just the opposite of what he is doing.  Therein lies the bizarre quality of his enterprise.  Here are some samples of how he presents himself:

Founded by Pierre Omidyar, First Look Media is based on the belief that democracy depends on a citizenry that is highly informed and deeply engaged in the issues that affect their lives. First Look seeks to improve society through journalism and technology, to help individuals hold the powerful accountable, build responsive institutions and, most important, shape their communities and what happens in their lives for the better….

…the promise I made:  “to experiment, innovate and overcome existing obstacles and to make it easier for journalists to deliver the transformative stories we all need.” …

I am committed to creating a journalistic organization that has a major and positive impact for the greater good.

We are unwavering in our desire to reach a mass audience …

About two years ago, the Omidyar-financed Roshan Institute presented the world with a startling finding:  the current government of Iran is actually, despite all appearances, in cahoots with the “Zionist entity.”

Here is the reasoning, according to Ms. Ana Ghoureishian, recipient of the Omidyar grant.  It seems that Israel engages in “pink washing,” i.e. practicing liberal policies on homosexuality for the hidden, i.;e. secret purpose of deceiving world public opinion. In other words, in this view, Israeli policies on homosexuality are in their essence the very opposite of what they seem.  How do the proponents of the “pink washing” thesis know about these Israeli secrets ?  Well, like other imperialist secrets, this one becomes revealed to the adherents of certain left-wing ideologies. In any case,  according to Ms. Ghoureishian, the idea of “pink washing”  is well known and accepted by all right-thinking people. With the exception, it seems, of the rulers of Iran.  Instead of exposing “pink washing” as a Zionist ploy,  the Iranian media actually attack Israel for an allegedly authentic liberalism toward homosexuality, thereby suggesting that these policies are in fact in accord with gay demands.  Thus, or so reasons the Omidyar-financed Ms. Ghoureishian, the Iranians aid the Zionist enemy.

This was an early indication of Mr. Pierre Omidyar’s construction of a parallel universe, one in which good is really bad and bad is really good.

I have already posted a number of articles on this blog describing the contents of the Omidyar-financed First Look Media/Intercept.  It is a website that publishes several articles a week with different ostensible subjects but with an underlying theme that never varies:  the US and Israel are the proximate cause of all the evil of our day.  Here are recent examples:

On September 28, FLM/I published an article “The Fake Terror Threat Used to Justify Bombing Syria,”  signed by Glenn Greenwald and Murtaza Hussain, which claimed, among other things, that the US has fabricated a terror threat in Syria out of pure cloth and with the sole purpose of justifying US bombings.  Five days earlier Glenn Greenwald published “Syria Becomes the 7th Predominantly Muslim Country Bombed By 2009 Nobel Peace Laureate.”  As Greenwald explained:  “Empires bomb who [sic] they want, when they want, for whatever reason.”  In other words, the United States doesn’t care a hoot about terror, or ISIS, or anything worth caring about.  All the US wants is to kill and maim and dominate for “imperialist” reasons.


Murtaza Hussain (right)

In other words, Omidyar and his writers know the secret motivation of our government.  How do they know ?  Basically they know this the way all doctrinaires know the alleged truths of their doctrines,  and  the notion of America as the Great Evil lies at the heart of the Greenwald-Omidyar  doctrine   It is this doctrine that inspires all their writings, even as Marxism-Leninism inspired the writings of the Stalinist press.

Now, not only is the Omidyar doctrine divorced from all empirical pursuit of fact, but it also requires the monolithic exclusion of all opinions and facts that are not congruent with it.

When Lenin and Stalin created what they termed the “monolithic” party in the Soviet Union, the resulting single-viewpoint movement was something of a novelty on the left-wing scene.  By creating a well-heeled monolithic news organization now, Omidyar has created a similar novelty in American journalism. FLM/I has a single point of view on all issues.  A reader will look in vain for any diversity of opinion on this site.

Here is a thought experiment that illustrates the rigid monolithism of the Omidyar enterprise.  FLM/I, as I said, is very much preoccupied with the topic of Israel.  But let us imagine, for a minute, that FLM/I were to take up a realistic examination of the position of Arab Israelis in the Israeli educational system.  We know that roughly 20% of the student body in the elite Israeli universities are Arabs, which accords with the Arab proportion in the population. But when controlled for socio-economic status, it would seem that Israeli Arabs are over-represented in Israeli universities.  Moreover, when compared to educational opportunities in Arab countries, Israeli Arabs would probably be seen as unusually fortunate.  And then, if we consider the fact that Israeli Arabs, unlike Jews, are not required to serve in the army, their position, at least in this respect, would seem to be very good indeed.

Now let us imagine that FLM/I were to take up the matter of educational opportunities of Israeli Arabs.  But of course such a topic is simply unimaginable in the Omidyar universe.  It is simply a non-topic in this parallel world, much like the scientific study of biological inheritance was a non-topic in the Soviet Union.

In brief, quite aside from the specific malevolent  doctrines of the Omidyar-Greenwald orthodoxy, there is something more than a bit odd, not to say bizarre, about this billionaire’s zeal in promoting, smack in the middle of our highly diverse American culture, a single-doctrine, over-financed sectarian monolith.  Will he receive the “mass audience” that he seeks so “unwaveringly” ?   I am inclined to agree with Abraham Lincoln, who was skeptical about the likes of Omidyar and their ability to fool the American people.

 Hat tips:  Richard Klagsbrun, Gabriel Schoenfeld

Addendum, 3/4/15:

Here are links to the twenty articles that Intercept has devoted to Israel, in whole or in part, during the thirteen months of its existence.

Addendum II, 3/4/15:

Mr. Omidyar routinely insists on being called a “technologist” by his subordinates:


On conference calls, staffers would “bet among ourselves how soon it would be until Pierre described himself as a ‘technologist,’ “ another First Look employee reports. “It was always less than three minutes.”


Actually, as he himself recounts, he flunked out of the engineering program at Tufts because he could not pass a course in Chemistry and had to transfer to the less rigorous Liberal Arts program in Computer Science.  I suppose being a “technologist,” at least in this case, is not so much a description of qualification as it is an indicator of vanity.