Category Archives: Omidyar

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.

References:

I.

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

II.

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