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Co-sponsored by the Center for Citizen Media and the Berkman Centers Clinical Program in Cyberlaw, the Citizen

Media Law Project (CMLP) is a new organization aimed at providing legal training and resources for individuals and organizations involved in citizen media.
Some of the things we are working on include:

Legal guide for citizen media and legal threats database


The CMLP is creating a legal guide that will cover a range of topics relevant to citizen journalists. It also seeks to address legal subjects relevant to citizen media such as risks associated with online publication, including discussion of defamation and privacy torts; legal issues related to newsgathering; intellectual property issues; and special risks associated with covering elections.

Legal and journalism education


The CMLP is currently working with the City University of New Yorks Graduate School of Journalism to provide legal expertise for the creation of an interactive online legal guide to teach citizen journalists their legal rights and responsibilities.

Litigation referrals, consultation, and representation


Lawyers and clinical law students at the CMLP will provide legal advice to individuals and organizations that operate citizen media sites.

Advocacy and coalition building


The CMLP provides research and advocacy on free speech, newsgathering, intellectual property, and other legal issues related to citizen media. One of our first projects is to cultivate support for a federal shield bill.

CMLP Urges First Circuit to Safeguard First Amendment Rights in Case Involving Cellphone Camera Recording of Police Officers
Cambridge, MA - The Citizen Media Law Project ("CMLP") submitted an amicus curiae brief (PDF) last week to the United States Court of Appeals for the First Circuit in a case involving a lawyer who was arrested for using his cellphone camera to record on-duty police officers on Boston Common. Joined by a broad amicus coalition that included Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., the Online News Association, and the Reporters Committee for Freedom of the Press, CMLP urged the court to affirm the First Amendment right to gather news in public places. CMLP filed the brief in the case, Glik v. Cunniffe, which stems from an incident that occurred on the Boston Common in October 2007. Plaintiff Simon Glik witnessed police arresting a man in the park. Glik recorded the arrest using his phone's video camera and was arrested for violating the Commonwealth's Wiretap Statute (Mass. Gen. Laws ch. 272, 99), which prohibits the "secret interception of wire and oral communications. The charges were eventually dismissed, and Glik sued the officers and the City of Boston. A lower court denied a motion to dismiss Gliks complaint, and the First Circuit is now considering the officers' appeal of that ruling. Amici argued in the brief that the Wiretap Statute cannot be applied to criminalize recordings where the subjects of those recordings do not reasonably expect their communications to be private. Allowing the arrest of a citizen for recording public officers conducting public business in a public place would not further the purpose of the Statute -- protecting the privacy interests of Massachusetts citizens -- and would run afoul of the First Amendment which protects the right to record public events and gather news and information. "Unless the Wiretap Statute is applied only in cases where reasonable privacy interests are at stake," said CMLP's Executive Director David Ardia, "the law may be used to chill socially valuable newsgathering and watchdog activities and suppress the distribution of important information." The Citizen Media Law Project was assisted by Harvard Law Schools Cyberlaw Clinic in drafting the brief, and Cyberlaw Clinic students Davis Doherty, David Kleban, Brandon Winston, and Elizabeth Winokur made significant contributions to the brief. "It was a privilege to work with CMLP on an issue of such immediate import," said Clinic student Brandon Winston. "In this era of the cameraphone, it is more important than ever that all citizens' First Amendment rights be protected." The CMLP and the Cyberlaw Clinic are both based at Harvard Universitys Berkman Center for Internet & Society, an organization dedicated to studying the development of cyberspace.

About the Citizen Media Law Project


The Citizen Media Law Project, which is jointly affiliated with the Berkman Center for Internet & Society at Harvard University and the Center for Citizen Media, provides legal assistance, training, research, and other resources for individuals and organizations involved in online and digital media. The CMLP endeavors to serve as a catalyst for creative thinking about the intersection of law and journalism on the Internet. Through the projects website, www.citmedialaw.org, the active engagement of lawyers and scholars, and occasional sponsored conferences, project staff are working to build a community of lawyers, academics, and others who are interested in facilitating citizen participation in online media and protecting the legal rights of those engaged in speech on the Internet. For more information, visit http://www.citmedialaw.org.

About the Harvard Law School Cyberlaw Clinic


The Cyberlaw Clinic, based at the Berkman Center for Internet & Society, engages Harvard Law School students in a wide range of real-world litigation, licensing, client counseling, advocacy, and legislative projects and cases, covering a broad spectrum of Internet, new technology, and intellectual property legal issues. The Clinic was the first of its kind, and it continues its tradition of innovation in its areas of practice. Among many other areas, the scope of the Clinics work includes counseling and legal guidance regarding complex open access, digital copyright, and fair use issues; litigation, amicus filings, and other advocacy to protect online speech and anonymity; legal resources and advice for citizen journalists; licensing and contract advice, especially regarding Creative Commons and other open licenses; patent reexamination requests for overly broad technology patents; and guidance and amicus advocacy for effective but balanced protection of children in the areas of social networking, child pornography, and online exploitation. More information can be found at http://cyber.law.harvard.edu/cyberlawclinic.

About the Berkman Center for Internet & Society


The Berkman Center for Internet & Society at Harvard University is a research program founded to explore cyberspace, share in its study, and help pioneer its development. Founded in 1997, through a generous gift from Jack N. and Lillian R. Berkman, the Center is home to an ever-growing community of faculty, fellows, staff, and affiliates working on projects that span the broad range of intersections between cyberspace, technology, and society. More information can be found at http://cyber.law.harvard.edu. ###

Berkman Centers Online Media Legal Network Partners with Investigative News Network
Cambridge, MA The Berkman Centers Online Media Legal Network (OMLN) announced today that it is collaborating with the Investigative News Network (INN) to help INN member organizations find pro bono and low-cost legal help. Based at Harvard Universitys Berkman Center for Internet & Society, OMLN is a legal assistance and referral service made up of law firms, law school clinics, in-house counsel, and individual lawyers throughout the United States willing to provide free and reduced-fee legal assistance to qualifying independent journalists and journalism ventures. The networks 100+ law firms and law school clinics comprise nearly 7,000 lawyers with expertise in media law, intellectual property law, and business advising. INN was founded in July 2009 at a conference in Pocantico, N.Y. to bring together the strengths of a growing number of nonprofit news organizations, including The Center for Public Integrity, the Center for Investigative Reporting, the Investigative Reporting Workshop at American University, and others. INN pools resources among its 51 nonprofit members, widens distribution of their work, works on sustainable business models, and fosters the highest quality investigative journalism. "Investigative and public service journalism is under threat, not just from declining revenue streams but also from government and other powerful institutions that use the law to avoid public accountability," said David Ardia, Director of the Online Media Legal Network. He added, "The OMLN is dedicated to leveling the playing field and to helping independent journalists and journalism organizations find the legal assistance they need to thrive. I can't think of a more important partner for our work than INN, whose members are engaged in some of the most exciting and innovative forms of accountability journalism today. OMLN is operated by lawyers with extensive backgrounds in law and journalism. Their intake attorneys will help INN's nonprofit member organizations identify existing legal needs, anticipate future legal issues, and match them with a participating attorney in their area. The assistance provided covers a wide range of legal support including copyright licensing and fair use, freelancer agreements, access to government information, website terms of service, pre-publication review of content, and representation in litigation. "We are very pleased to work with the OMLN to help address the ongoing legal needs of our member organizations," said Kevin Davis, CEO & Executive Director of the Investigative News Network. "By working closely together with resources like the OMLN, INN is helping provide our nonprofit, nonpartisan membership organizations with necessary resources to produce sustainable, high quality accountability journalism."

Both INN and OMLN are supported by generous grants from the John S. and James L. Knight Foundation and the Open Society Foundations.

Berkman Center Opportunity: Fellow/Assistant Director of the Digital Media Law Project
Are you a lawyer interested in dealing with emerging legal issues related to law, journalism, and new media on the Internet? The Berkman Center for Internet & Society at Harvard Law School is seeking an Assistant Project Director/Program Fellow commencing in early 2011 to assist with the Berkman Centers Digital Media Law Project (formerly the Citizen Media Law Project). We are accepting applications on a rolling basis until the position is filled, and applications for this fellowship opportunity must be submitted through the Harvard Human Resources website at: https://sjobs.brassring.com/1033/asp/tg/cim_jobdetail.asp?jobId=762654&P.... The official HR language is below, followed by additional context and information. Questions about the position should be directed to David Ardia (dardia [at] cyber.law.harvard.edu). Berkman Center Program Fellow/Assistant Project Director, Digital Media Law Project

Responsibilities
Reports to the Director of the Berkman Centers Digital Media Law Project and works in conjunction with the Director of the Cyberlaw Clinic. The Digital Media Law Project (DMLP) works to ensure that individuals and organizations involved in online journalism and digital media have access to the legal resources, education, and help that they need to thrive. The DMLP, which began operations as the Citizen Media Law Project in May 2007, focuses its work on three broad areas: legal education and training; litigation and pro bonolegal services; and the collection and analysis of legal threats facing online speakers and publishers. For more information on the DMLP, visit: http://www.DMLP.org/. The Fellows primary substantive responsibilities will be to assist with the operation and expansion of the projects Online Media Legal Network, a legal referral network comprised of law school clinics, in-house legal counsel, and individual lawyers across the United States who provide free and low-cost legal assistance to online journalism ventures and other digital media creators. Through collaboration with lawyers and law students in Harvard Law Schools Cyberlaw Clinic, the Fellow may provide legal assistance to individuals and organizations that operate online and digital media ventures. Particular emphasis will be placed on recognizing the complex interactions between the business, technological, and legal aspects of clients needs. The Fellow also may assist in the supervision and mentoring of clinical students working on transactional, litigation, and counseling projects. The Fellow also may have the opportunity to engage in oral and written advocacy on behalf of clients, including opportunities to draftamicus briefs in cases involving significant First Amendment, intellectual property, and media law issues. The Fellow will have many opportunities to expand his/her knowledge of technology and law, including frequent interactions with other fellows at the Berkman Center and throughout Harvard University. The position is a great opportunity for experienced media, IP, or business law practitioners who want to serve the public interest, transition to academic pursuits, or simply work in an intellectually invigorating environment. While this position is full-time, the Fellow will have the opportunity to spend a limited amount of time pursuing his/her own related academic research interests and will be provided a computer work station, Internet access, and access to Harvards extensive library system. This is a term position for one year; continuation is contingent on business needs and project funding. We seek someone to join the team as soon as possible, and will begin reviewing candidates immediately.

Basic Qualifications
Juris Doctor degree with admission to and active status in at least one state bar and eligibility for admission on motion to the Massachusetts bar. A minimum of 3 years legal-practice experience with significant Internet, intellectual property, or media law background is required.

Additional Qualifications
Previous experience advising clients on non-profit formation or operation is advantageous.

Candidates should be energetic and passionate about working on journalism, online speech, intellectual property, and cyberlaw issues. Top academic credentials, superior writing and verbal skills, sound judgment, exceptional ethical standards, and proven abilities in interpersonal communication, supervision, and team building are required. Additional Information The Berkman Center for Internet & Society at Harvard University is a research program founded to explore cyberspace, share in its study, and help pioneer its development. Founded in 1997, through a generous gift from Jack N. and Lillian R. Berkman, the Center is home to an ever-growing community of faculty, fellows, staff, and affiliates working on projects that span the broad range of intersections between cyberspace, technology, and society. More information can be found at http://cyber.law.harvard.edu. Commitment to Diversity The work and well-being of the Berkman Center for Internet & Society at Harvard University are strengthened profoundly by the diversity of our network and our differences in background, culture, experience, national origin, religion, sexual orientation, and much more. We actively seek and welcome applications from people of color, women, the LGBTQ community, and persons with disabilities, as well as applications from researchers and practitioners from across the spectrum of disciplines and methods. The roots of this deep commitment are many and, appropriately, diverse. We are not nearly far enough along in this regard, and we may never be. It is a constant process in which there remains much to learn. We welcome your inquiries, comments and ideas on how we may continue to improve. What is the Berkman Center for Internet & Society? The Berkman Center for Internet & Society is a research center founded at Harvard Law School in 1997. Now a university-wide center, it serves as the locus for a network of Harvard and other faculty, students, fellows, lawyers, entrepreneurs, and others working to identify and engage with the challenges and opportunities presented by the Internet. The Center is devoted to research and teaching on issues at the intersection of emerging technologies, law, public policy, industry, and education and to the development of dynamic approaches and rigorous scholarship that can affect and support the public interest. The Berkman Center has been at the forefront of efforts to study and facilitate online expression, including, among other initiatives: publishing Media Re:public, a series of papers exploring the potential and the challenges of the emerging networked digital media environment; launching Global Voices Online, a nonprofit that aggregates and disseminates the views expressed in blogs throughout the world; and hosting the Blogging, Journalism, and Credibility Conference, which brought together professional journalists, bloggers, news executives, media scholars, and lawyers to study the emerging media environment on the Internet.

What does the Digital Media Law Project do? The Digital Media Law Project (DMLP) works to ensure that individuals and organizations involved in online journalism and digital media have access to the legal resources, education, and help that they need to thrive. The DMLP, which began operations as the Citizen Media Law Project in May 2007, focuses its work on three broad areas: legal education and training; litigation and pro bono legal services; and the collection and analysis of legal threats facing online speakers and publishers. The DMLP endeavors to serve as a catalyst for creative thinking about the intersection of law and journalism on the Internet. Through the projects website, www.DMLP.org, the active engagement of lawyers and scholars, and occasional sponsored conferences, project staff are working to build a community of lawyers, academics, and others who are interested in supporting innovative journalism ventures and protecting the legal rights of those engaged in speech on the Internet. A central aim of the DMLP is to provide practical knowledge and legal assistance for online media. This includes providing pro bonolegal assistance to new journalism ventures and other independent online publishers on a diverse range of topics, including business formation and governance, copyright licensing and fair use, employment and freelancer agreements, pre-publication review of content, and representation in litigation. In January 2010, DMLP launched a pro bono legal referral network called the Online Media Legal Network comprised of law school clinics, in-house legal counsel, and individual lawyers across the United States who provide free and low-cost legal assistance to online journalism ventures and other digital media creators. DMLP also has filed and participated in amicus curiae (friend of the court) briefs in cases raising important First Amendment and intellectual property issues, including:

Maxon v. Ottawa Publ'g Co., No. 2008-MR-125 (Ill. App. Ct. Mar. 24, 2009). We submitted a brief urging an Illinois appellate court to protect the rights of anonymous Internet speakers by imposing important procedural safeguards before ordering disclosure of their identities. Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 21, 2009). We joined Public Citizen, the Center for Democracy and Technology, and the Electronic Frontier Foundation in asking the court to amend its opinion to omit dicta indicating that Section 230 of the Communications Decency Act cannot be raised on a motion to dismiss, as well as to clarify that Section 230 applies to federal as well as state law claims. The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 2009-0262 (N.H. June 22, 2009). We joined forces with the Reporters Committee for Freedom of the Press to submit a brief urging the New Hampshire Supreme Court to defend the First Amendment

rights of a website that covers news about the mortgage industry and to apply New Hampshire's qualified reporter's privilege to online news publishers.

Fustolo v. Hollander, No. SJC-10485 (Mass. Oct. 1, 2009). We joined the ACLU of Massachusetts and the Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association in submitting a brief arguing that the Massachusetts anti-SLAPP statute applies to all parties who engage in petitioning activities, including members of the news media and paid staff of advocacy organizations. Wright Development Group LLC v. Walsh, No. 08-2783 (Ill. Mar. 3, 2010). We submitted a brief to the Illinois Supreme Court urging the court to reject two lower courts narrow interpretations of the states Anti-SLAPP statute, known as the Citizen Participation Act. Barclays Capital Inc. v. Theflyonthewall.com, Inc., 10-1372-CV (2d Cir. June 21, 2010). We joined EFF and Public Citizen to submit a brief to the Second Circuit Court of Appeals urging the court to apply First Amendment scrutiny to the hot news misappropriation doctrine.

What will the Assistant Director do? The Assistant Director will report to the Director of the DMLP and will supervise and mentor the projects staff attorneys and student interns. The Assistant Directors primary substantive responsibility will be to assist with the operation and expansion of the projects Online Media Legal Network. The Assistant Director may provide legal assistance, in collaboration with lawyers and law students in Harvard Law Schools Cyberlaw Clinic, to individuals and organizations that operate online and digital media ventures. Particular emphasis will be placed on recognizing the complex interactions between the business, technological, and legal aspects of clients needs. The Assistant Director also may assist in the supervision and mentoring of clinical students working on transactional, litigation, and counseling projects. The Assistant Director may have the opportunity to engage in oral and written advocacy on behalf of clients, including opportunities to draft amicus briefs in cases involving significant First Amendment, intellectual property, and media law issues. The Assistant Director will have many opportunities to expand his/her knowledge of technology and law, including frequent interactions with other fellows at the Berkman Center and throughout Harvard University. The position is a great opportunity for experienced media, IP, or business law practitioners who want to serve the public interest, transition to academic pursuits, or simply work in an intellectually invigorating environment. While this position is full-time, the Assistant Director will have the opportunity to spend a limited amount of time pursuing his/her own related academic research interests and will be provided access to Harvards extensive library system. This is a fellowship position for one year. Continuation is contingent on business needs and project funding. What qualifications are necessary? Candidates must have a Juris Doctor degree with admission to and active status in at least one state bar and eligibility for admission on motion to the Massachusetts bar. A minimum of 3 years legal-practice experience with significant Internet, intellectual property, or media law background is required. Previous experience advising clients on non-profit formation or operation is advantageous. Candidates should be energetic and passionate about working on journalism, online speech, intellectual property, and cyberlaw issues. Top academic credentials, superior writing and verbal skills, sound judgment, exceptional ethical standards, and proven abilities in interpersonal communication, supervision, and team building are required. How to get more information or apply? Applications and questions should be submitted as soon as possible. To apply, submit your CV or resume, cover letter summarizing your interest and key experience, and the names of three references through Harvards recruitment site (ID: 22744) by going to this link.

Blog
Federal Courts Discuss Smartphone Policies
Posted April 1st, 2011 by Eric P. Robinson The U.S. Judicial Conference, which helps set policy for federal circuit (appeals) and district (trial) courts, has issued a memo, first reported by Wired's "Threat Level" blog, that is meant to help individual courts set policies on when and how smartphones and similar devices can be brought into and used in courthouses and in courtrooms. The memo outlines some of the issues that arise with smartphones and other electronic devices in courthouses, and informally surveys various federal courts'

existing policies regarding smartphones. The survey found that 41 of the 94 district courts allow anyone to bring the devices into their courthouses, often with some restrictions on their use. Of these 41 courts, nearly a third prohibit the public from bringing the devices in the courtroom, while the remaining two-thirds require that devices be kept off or in silent mode without the judge's permission. Forty-eight district courts ban devices, except for those possessed by judges, court personnel, and probation and pretrial officers, or with the express permission of a judge. Other courts ban only certain devices, such as devices that include cameras. In both types of situations, courts either check and store the devices or else simply bar individuals from entering with such a device. Five district courts, according to the survey, had no stated policy on the issue on their websites. read more

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Citizen Journalism

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Is Righthaven Harming the News Industry?


Posted March 29th, 2011 by Joel Sage Righthaven, a copyright-enforcement entity that sues first and asks questions later, comes up a lot here at the CMLP, both on the blog and in the legal threats database. As a recent profile on CNN.com illustrates, Righthavens founder Steve Gibson thinks he is simply enforcing content owners rights within the digital landscape: What really is happening here is a realization of the infringement community that the days of merely receiving a takedown letter are over, and that people will have a means to protect their ownership rights. Like you're taught in grammar school, it's not right to take someone else's work, whether it's cheating or plagiarizing. Whether the Internet permits you to do it, that doesn't make it right. read more

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CMLP and Cyberlaw Clinic Ask Supreme Judicial Court to Affirm Public Right of Access to Inquest Records
Posted March 28th, 2011 by David Ardia With the help of Harvard Law School's Cyberlaw Clinic, the Citizen Media Law Project and a coalition of New England media and advocacy organizations submitted an amicus curiaebrief last week to the Massachusetts Supreme Judicial Court, seeking to ensure a public right of access to inquest materials that will allow journalists, bloggers, and other news gatherers to inform citizens on matters of public concern. The case involves Amy Bishop, the professor of neuroscience at the University of Alabama who allegedly shot and killed three of her colleagues during a faculty meeting on February 12, 2010. During their investigation of these events, Alabama authorities noted that, in 1986, Massachusetts police had investigated Bishop's involvement in the fatal shooting of her brother, Seth Bishop, and had deemed the shooting accidental. The shooting in Huntsville sparked a new inquiry into Seth Bishop's death, and in February 2010, the Norfolk District Attorney initiated an "inquest," which is an investigative, fact-gathering procedure. Mass. G.L. c. 38, 8. On June 16, 2010, a grand jury in Massachusetts indicted Amy Bishop for first-degree murder. Given the widespread public interest in the case, The Boston Globe filed a motion seeking to inspect the inquest transcript and report. The Superior Court denied the motion and ordered that the inquest materials remain impounded. Harvard's Cyberlaw Clinic drafted the brief and we were joined by Community Newspaper Holdings, Inc., GateHouse Media, Inc., Massachusetts Newspaper Publishers Association, Metro Corp. d/b/a Boston Magazine and the New England Newspaper and Press Association, Inc. The brief states: read more

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Introducing Guest Blogger Joel Sage


Posted March 25th, 2011 by Arthur Bright I'm excited to welcome Joel Sage as a guest blogger. Joel is a Massachusetts attorney and recent graduate of the Boston University School of Law with a deep interest in intellectual property issues. He has served as a research assistant to noted copyright scholar Wendy Gordon and to syndicated legal analyst and Massachusetts lawyer Neil Chayet of CBS Radio's "Looking at the Law". Joel was also the executive editor of the BU Journal of Science and Technology Law, which published his note Revenue Streams and Safe Harbors: How Water Law Suggests a Solution to Copyright's Orphan Works Problem. Joel earned his undergraduate degree from Wheaton College in Illinois. In addition to his posts here, Joel also writes for his own commentary blog, Legally Sociable, as well as taking photos for his self-titled photography blog. Please join me in welcoming Joel!

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CMLP

Rethinking Sunshine in the Beehive State


Posted March 23rd, 2011 by Arthur Bright After enacting a colossally backward law in recent weeks that undermined Utah's open records law, the Utah government is now considering a repeal of the bill that earned Utah the Society of Professional Journalists' inauguralBlack Hole Award, which goes to "the most heinous violations of the public's right to know." It's an odd situation. Just two weeks after he signed HB477 into law, Governor Gary Herbert came out with a commentary in The Salt Lake Tribune calling for the bill's repeal, and promising a special session of the legislature to do so. The Utah House has endorsed the special session idea, according to the Cache Valley Daily. And the Utah Senate, where the bill passed twice before in votes of 21 and 23 senators out of 29 in favor, now appears to be close to voting for its repeal. The Deseret News reports 12 senators have said they will vote for repeal, with 15 needed to make a majority. Considering just two weeks ago these bodies were enthusiastic in affirming HB477, we're looking at quite the turnaround. read more

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Utah

Access to Gov't Information

A Fine Day for FTC's Blogger Rules


Posted March 21st, 2011 by Eric P. Robinson The Federal Trade Commission has announced the first monetary penalty under its "Guides Concerning the Use of Endorsements and Testimonials in Advertising": a $250,000 settlement with a company that sells guitar lessons on DVDs. The FTC guides require disclosure of compensated endorsements in media where such compensation is not obvious (in the view of the FTC), such as on blogs and other social media. In response to criticism, shortly after issuing the rules the Commission clarified that "If law enforcement becomes necessary, our focus will be advertisers, not endorsers just as its always been." In the months since, the FTC has reached non-monetary settlements with clothing retailer Loft and public relations firm Reverb Communications. Both companies agreed to stop their practices that attracted the FTC's attention, and not to repeat it. The latest settlement, with Legacy Learning Systems, Inc. and owner Lester Gabriel Smith, is the first to include a monetary payment. (Since it's a settlement, the payment is technically not a fine.) The company will also be required to submit monthly reports to the agency ensuring compliance by its top 50 revenue-generating affiliate marketers, and a random sampling of another 50 of their affiliate marketers. read more

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Software Best Practices and Open Source Derivative Works


Posted March 2nd, 2011 by Arthur Bright We received a request not long ago from one of the lawyers in our Online Media Legal Network who is looking for legal resources on a couple different issues tied to software development, particularly open source software development. And frankly, they're the sorts of resources that we expect more and more lawyers will have need for. Thus, we're reposting the requests here - along with my first stab at researching them in the hopes of drumming up a bit of crowdsourcing to find the answers. The first request was for best practices, procedures, and policies relating to management of the software development function. Of particular concern is situations where developers are writing original code, licensing commercial code, and using open source code in developing software that is redistributed to nonprofits. What recommendations are out there for such best practices in complying with the various licenses? I found three possible resources for this, each with a somewhat different focus. The first, anIBM article on software development best practices, is mostly for the techie set. It's also a little old - apparently last updated in 2006 - so it's likely missing newer innovations in the field. The next is an article from Lullabot.com on open source software development - closer to what the lawyer is looking for, I think. But it's still on the techie, rather than legal, side, and a few years old to boot. read more

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Media Bloggers Assn Files Amicus Brief in Righthaven Case, Blasts Business Model Behind Lawsuits
Posted February 24th, 2011 by David Ardia Yesterday, the Media Bloggers Association filed an amicus brief in Righthaven LLC v. Hyatt, urging a federal judge in Nevada to award only minimal damages and no attorney's fees to Righthaven against a blogger who failed to appear in the case and is facing a default judgment. We've covered a number of Righthaven lawsuits in our legal threats database, but this case now has a spicy twist. On October 6, 2010, Righthaven sued Bill Hyatt, who operates a blog called "News for Everyone" (appears to be shutdown), for copyright infringement, claiming that he had copied a Las Vegas Review-Journal entertainment column titled "FX's Manly Man Shows Hold Outsider Appeal." After Hyatt didn't respond to the lawsuit, Righthaven filed a motion for default judgment, asking the court to award it control of the domain name for Hyatt's website, $150,000 in damages, and $1,850 in legal fees and costs. read more

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CMLP and Cyberlaw Clinic Urge First Circuit to Affirm First Amendment Right to Make Cellphone Recording of Police
Posted February 11th, 2011 by David Ardia With the help of Harvard Law School's Cyberlaw Clinic, the Citizen Media Law Project and a coalition of media and advocacy organizations submitted an amicus curiae brief last week to the United States Court of Appeals for the First Circuit in a case involving a lawyer who was arrested for using his cellphone camera to record on-duty police officers. Joined by a broad amicus coalition that included Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., the Online News Association, and the Reporters Committee for Freedom of the Press, CMLP urged the court to affirm the First Amendment right to gather news in public places. read more

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Online Media Legal Network Announces Partnership with Investigative News Network
Posted February 9th, 2011 by CMLP Staff We are pleased to announce that the Online Media Legal Network (OMLN) is partnering with the Investigative News Network (INN) to help INN member organizations find pro bono and low-cost legal help. We are honored to join forces with INN, whose members are engaged in some of the most exciting and innovative forms of accountability journalism today. From the press release: The Berkman Center's Online Media Legal Network (OMLN) announced today that it is collaborating with the Investigative News Network (INN) to help INN member organizations find pro bono and low-cost legal help. Based at Harvard University's Berkman Center for Internet & Society, OMLN is a legal assistance and referral service made up of law firms, law school clinics, in-house counsel, and individual lawyers throughout the United States willing to provide free and reduced-fee legal assistance to qualifying independent journalists and journalism ventures. The network's 100+ law firms and law school clinics comprise nearly 7,000 lawyers with expertise in media law, intellectual property law, and business advising. read more

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Dan Snyder is butthurt, SLAPP suit ensues, Irony meter pegged


Posted February 7th, 2011 by Marc J. Randazza Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult. Snyder filed a frivolous defamation suit against the Washington City Paper ("WCP") based upon an article "The Cranky Redskins Fan's Guide to Dan Snyder." Snyder accuses the WCP of spreading "lies, half-truths, innuendo, and anti-Semitic imagery" to defame him, seeking $2 million in damages. The amount is split between two claims, the first for defamation and the second for false light. The "anti-semitic imagery" he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder's photograph in the WCP, which can be seen here. read more

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New York

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Trademarks: Why Registering Your Design or Logo May Not Protect You
Posted January 25th, 2011 by Andrew Mirsky What are the differences between special form (stylized, design, logo) trademarks and standard character (word) trademarks? The 2 basic trademark types are these: (1) special form trademarks and (2) standard character trademarks. A special form trademark that consists of stylized words, letters, numbers and/or a design element such as a logo. A standard character trademark consists only of words, letters, or numbers, with no stylization, color or design element.

The issue comes up this way: A company or an individual wants to trademark a brand or company name. So far so good. The first question is does this individual or company have a particular design or logo for its name? If not, then the only type of trademark registration available is a character or word mark. If a design or logo is in the mix, then the question is whether or not that design or logo has any value to the company. Obviously examples are the Nike swoosh and the Coca-Cola script logo. These are good examples of designs or logos that separate from the names of the companies themselves have distinct trademark value for their owners. Here are 3 situations where a logo may have no particular immediate value to the company, and therefore no particular trademark value:(1) There is nothing unique about the design or logo. Technically, a stylized trademark includes anything beyond just the name itself. But a rendering of the name in italics or a particular color or in a common geographic box or any of these things without more would not typically be the subject of trademark because theres nothing unique about the design. read more

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U.K. Extends Consumer Disclosure Laws Online, As In U.S.


Posted January 14th, 2011 by Eric P. Robinson

The Office of Fair Trading, the British equivalent of the United States Federal Trade Commission, has determined that the hiring of bloggers and other social media contributors to promote particular products without adequate disclosure of the relationship may violate U.K. consumer protection laws. Handpicked Media Ltd (Handpicked Media), Case Ref. CRE-E-25932 (OFT Dec. 13, 2010). This is the first time these laws have been applied online. This is similar to the stance that the FTC has taken in a 2009 update to its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which includes disclosure requirements for similar arrangements. I and others have written extensivelyabout the guides and their application. "The OFT was concerned that individuals engaged by Handpicked Media were publishing online content which promoted the activities of Handpicked Media's clients, without sufficient disclosures in place to make it clearly identifiable to consumers that the promotions had been paid for. This included publication on website blogs and microblogs (forexample Twitter)," the British agency wrote in its ruling. "As a result of its investigation, the OFT formed the view that Handpicked Media may be operating in breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs)." read more

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New Conference for Internet Law Scholars


Posted January 7th, 2011 by David Ardia Call For Papers: The High Tech Law Institute at Santa Clara University School of Law and the Institute for Information Law and Policy at New York Law School are pleased to announce a new annual works-in-progress series for Internet Law scholarship. The inaugural event will be held at Santa Clara University on March 5, 2011. Thereafter, the event will rotate between NYLS and SCU each Spring semester. Topically, the organizers take a broad view of what constitutes "Internet Law" scholarship, and we welcome all types of scholarly approaches (doctrinal, theoretical, empirical, etc.). We offer three ways to participate in the event: Papers-in-Progress Presentation for paper drafts sufficiently advanced to share with event attendees; Projects-in-Progress Presentation for research projects without a paper draft for attendees to review in advance; Discussant. Those interested in participating should email Eric Goldman (egoldman [at] gmail.com) no later than Jan. 17, 2011. For more information, go to the Santa Clara website.

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Social Media Policies: Fed Labor Law Problem?


Posted December 24th, 2010 by Andrew Mirsky A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor. Not in dispute is that the employees actions violated the companys social media and other personnel policies, which (among other things) prohibited depicting the company in any way on Facebook or other social media sites or from disparaging or discriminatory comments when discussing the company or the employees superiors and co-workers. In dispute is whether that social media policy and the companys actions in enforcing the policy violated public policy, in particular Federal labor law. This came into fast relief when the National Labor Relations Board (NLRB) subsequently filed a complaint against the company, charging the company with violations of the employees rights under the National Labor Relations Act (NLRA). The company is American Medical Response (AMR), an ambulance service provider. The incident followed a customer complaint about the employees work, when the employees supervisor asked the employee to prepare a report about the incident. At that point, the employee sought but was denied representation from her union. Later that day, the employee posted negative remarks about her supervisor and AMR on her personal Facebook page, through her home computer. It appears that at no time did she use AMRs technology or services to conduct her actions. read more

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Introducing Guest Blogger Andrew Mirsky


Posted December 23rd, 2010 by David Ardia I'm excited to welcome Andrew Mirsky as a guest blogger. Andrew is an attorney and Principal of Mirsky & Company, PLLC, a law firm with particular emphasis in new media, intellectual property, technology, corporate and nonprofits. He has 17 years' experience as a business and commercial lawyer, including 5 years' experience in company management of media and technology enterprises. Andrew began his law career in New York City at the corporate law firm of Kaye Scholer LLP, focusing on corporate and finance transactions and advising clients in media, healthcare, securities, finance, manufacturing, and real estate. Andrew later worked inhouse at a client technology startup, with a business of supply-chain management technology. Andrew moved to Washington in 1999 and worked in Advertising Operations at The Washington Post Company, before joining Atlantic Media Company as Director of Business Development and Legal Affairs. Atlantic is publisher of The Atlantic Monthly, National Journal and Government Executive. Mirsky & Company is a founding member of the Washington, DC-based industry group "Media Future Now," a monthly lunch forum for the discussion of new media and digital technology business issues impacting content creators, advertisers and marketers, production and operations managers, financiers and related new media players. Andrew has his law and undergraduate degrees from the University of Pennsylvania, in Philadelphia. He attended high school in Millburn, NJ, and studied classical and jazz piano at the Manhattan School of Music (Preparatory Division), in New York City. Please join me in welcoming Andy!

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First Amendment Alert! Author arrested for writing a book


Posted December 20th, 2010 by Marc J. Randazza I'm the first to admit that Phillip Greaves is not the most sympathetic figure in America. Greaves wrote "The Pedophile's Guide," which was originally for sale on Amazon.com before the online retailer bowed to public pressure and pulled the book from its online shelves. I don't necessarily have a problem with that. But, I have a big problem with today's developments. The Orlando Sentinel reports that Polk County Sheriff Grady Judd had Mr. Greaves arrested in Pueblo, Colorado on obscenity charges. Lets remember that Grady Judd's jurisdiction is home to meth labs, cops who diddle children, and a pretty high incest rate. Despite the "real crime" in his jurisdiction, Judd instructed his detectives to request an autographed copy of the book. Mr. Greaves obliged and Judd used that as his justification for having Greaves indicted on obscenity charges in his little caliphate of inbred-methistan. Greaves told ABC News last month he wasn't trying to promote pedophilia and was not himself a pedophile: "I'm not saying I want them around children, I'm saying if they're there, that's how I want them to [behave]." (source) read more

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Citizen Media Law Project is Hiring an Assistant Director


Posted December 9th, 2010 by David Ardia Are you a lawyer interested in dealing with emerging legal issues related to law, journalism, and new media on the Internet? Would you like to help online journalism and new media ventures meet their legal needs? Do you want a stimulating yet laid back work environment? The Citizen Media Law Project (soon to be renamed the Digital Media Law Project) at Harvard University's Berkman Center for Internet & Society is looking to hire an Assistant Project Director/Program Fellow commencing in early 2011 to assist with the project's work. The position requires a Juris Doctor degree with admission to at least one state bar and a minimum of 3 years of legal-practice experience with a significant Internet, intellectual property, or media law focus. Previous experience advising clients on non-profit formation or operation is advantageous. Our offices are located at the Berkman Center at Harvard Law School, so you must be willing to work in Cambridge, MA. We're really excited about this position and about bringing someone new on board to help with our work and supervise and mentor the project's staff attorneys and student interns. It's a great opportunity for experienced media, Internet, or IP law practitioners who want to serve the public interest, transition to academic pursuits, or simply work in an intellectually invigorating environment. The Assistant Director will have many opportunities to expand his/her knowledge of technology and law, including frequent interactions with other fellows at the Berkman Center and throughout Harvard University. read more

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CMLP

Show Me the Money...


Posted November 29th, 2010 by Kimberley Isbell We know that our readers are a pretty creative, enterprising bunch. Now you can get some cash to help fund your idea. Our friends over at the John S. and James L. Knight Foundation are running a grant competition called theKnight News Challenge, which awards up to $5 million for innovative projects that use digital technology to transform the way communities send, receive and make use of news and information. More info can be found on their website, which includes application information, as well as details about past winners (including your friends here at CMLP). This year's application deadline is December 1, 2010, so you should get cracking. The News Challenge is looking for applications in four categories: mobile, authenticity, sustainability and community. All projects must make use of digital technology to distribute news in the public interest. To apply, submit a brief pitch (500 words or less) to http://newschallenge.org.If the reviewers like it, you'll be asked to submit a full proposal. If you have questions you can a) read the FAQ or b) check the archived chat transcripts. Good luck!

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Rethink Music: Creativity, Commerce, and Policy in the 21st Century


Posted November 20th, 2010 by David Ardia May be of interest to some of our readers: The Berkman Center for Internet & Society at Harvard University, in collaboration with Harvard Law School's Journal of Sports and Entertainment Law ("JSEL"), is pleased to announce a CALL FOR PAPERS, seeking policy proposals that advance the interests of music creators, consumers, and entrepreneurs through changes in existing law. The Call for Papers coincides with Berklee College of Music's upcoming conference, "Rethink Music: Creativity, Commerce and Policy in the 21st Century," scheduled to be held in Boston and Cambridge, MA in April 2011. . . . The "Rethink Music" symposium will focus on economic and policy concerns that dictate the viability of creative industries. The event is designed to provide a forum for high-level deliberation by experts, with input from creators and stakeholders from across the spectrum, about the future of creative works, their distribution, and the laws that regulate them. The event will aim to differentiate itself from the myriad of other music and intellectual property conferences by: (a) focusing on law, economics, and emerging business models together; (b) extensively involving creators; (c) soliciting input from both within and outside of traditional music companies and organizations; and (d) inviting submission of policy proposals and business models.

Call for Papers: Rethink Music Conference


November 08, 2010
Note: Our submission deadline has been extended to February 7, 2011. The Berkman Center for Internet & Society at Harvard University, in collaboration with Harvard Law SchoolsJournal of Sports and Entertainment Law (JSEL), is pleased to announce a CALL FOR PAPERS, seeking policy proposals that advance the interests of music creators, consumers, and entrepreneurs through changes in existing law. The Call for Papers coincides with Berklee College of Musics upcoming conference, "Rethink Music: Creativity, Commerce and Policy in the 21st Century," scheduled to be held in Boston and Cambridge, MA in April 2011. Article I, Section 8 of the United States Constitution empowers Congress to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. In response, Congress created copyright, patent, and trademark law and thus established a framework to govern the protection and exploitation of creative works. The Internet has changed the game for the creation and distribution of such works -- particularly musical works. New technologies have opened new channels for distribution and new revenue streams. Artists have a wide array of tools at their disposal when creating music and communicating with fans. Consumers have a diverse and expanding array of ways to connect with a diverse and expanding array of musical works. But the Internet and digital technologies present undeniable challenges piracy is rampant, traditional business models have been upended, and some find available digital music offerings to be overly restrictive, non-portable, or incomplete. Against this backdrop, efforts to innovate in the distribution and delivery of music to consumers often bump up against the limitations of existing copyright and other laws. The "Rethink Music" symposium will focus on economic and policy concerns that dictate the viability of creative industries. The event is designed to provide a forum for high-level deliberation by experts, with input from creators and stakeholders from across the spectrum, about the future of creative works, their distribution, and the laws that regulate them. The event will aim to differentiate itself from the myriad of other music and intellectual property conferences by: (a) focusing on law, economics, and emerging business models together; (b) extensively involving creators; (c) soliciting input from both within and outside of traditional music companies and organizations; and (d) inviting submission of policy proposals and business models. SUMMARY OF CALL FOR PAPERS In connection with the "Rethink Music" event, the Berkman Center and JSEL seek papers that propose changes to intellectual property or other laws that relate to the creation, production, distribution, performance, or other use of musical works. Papers will be selected from among those submitted by a committee designated by the staff of JSEL and/or by staff and/or Faculty Directors of the Berkman Center for Internet & Society and/or their designees (including representatives from other academic institutions and/or others with expertise in music or intellectual property business and/or policy). Up to four (4) authors whose papers are selected will be invited to present their work at the "Rethink Music" symposium. Berklee College of Music will provide economy airfare and hotel accommodations for any authors invited to present at the symposium. Up to two (2) papers will be considered for publication in JSEL. The number of authors selected to present at the symposium and the number of authors to whom prizes are awarded will depend upon

the quantity and quality of eligible papers submitted. The Berkman Center and JSEL reserve the right, in their sole discretion, to decide that no papers will be presented at the Rethink Music symposium and/or published in JSEL. The Berkman Center may contact authors of papers not selected for publication or presentation at the symposium regarding publication via another medium e.g., online, via the Berkman Center website. EVALUATION CRITERIA Each policy proposal submission will be evaluated based on, inter alia, the extent to which it meets the following criteria:

Each submission should explain the state of existing United States law in the area that is the subject of the proposal. Each submission should identify problems and/or concerns with existing law in that area and the ways in which that law promotes or fails to promote the interests of various relevant stakeholders, including but not limited to creators and consumers of music. Each submission should recommend a specific and discrete change or set of changes of existing law (e.g., a legislative amendment or modification of an existing regulatory framework). Each submission should explain how the change will impact various stakeholders, including but not limited to creators and consumers of music.

Each submission should offer commentary of the feasibility of such proposal, including strategic concerns relating to securing support for the proposal and the mechanics surrounding its implementation. Particular consideration will be given to the author's ability to make a compelling case for the policy proposal advanced, including the ways in which that proposal would positively impact various stakeholders. The feasibility of the proposal, the as well as the quality of the written product, will also be weighed heavily in evaluating the policy proposal submissions. ELIGIBILITY Submissions will be accepted from scholars and students (with a focus on legal scholars and law students) and/or others. Only unpublished papers will be considered, although papers may be posted on SSRN, ECGI, or similar working paper series. Authors must be available to participate in the "Rethink Music" symposium in April 2011. DEADLINE Submissions must be received by January 24, 2011 (UPDATE: Extended until February 7, 2011). Authors will be notified of the results of the competition in or around late-February or early-March 2011. The "Rethink Music" symposium will take place in Boston and Cambridge in April 2011. SUBMISSION GUIDELINES Submissions should adhere to the guidelines set forth for Comments and Notes on the submissions page at the JSEL website: http://harvardjsel.com/submissions/. Each submission and any accompanying materials should be sent to JSEL as set forth in the JSEL submission guidelines, with a clear indication that the submission responds to the Rethink Music Call for Papers. A copy of each submission and any accompanying materials should be sent to the Berkman Center for Internet & Society atrethink@cyber.law.harvard.edu.

Recording Phone Calls and Conversations


If you plan to record telephone calls or in-person conversations (including by recording video that captures sound), you should be aware that there are federal and state wiretapping laws that may limit your ability to do so. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damagesagainst you. From a legal standpoint, the most important question in the recording context is whether you must get consent from one or all of the parties to a phone call or conversation before recording it. Federal law and many state wiretapping statutes permit recording if one party (including you) to the phone call or conversation consents. Other states require that all parties to the communication consent. Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation. Therefore, if you record a phone call with participants in more than one state, it is best to play it safe and get the consent of all parties. However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state. In some states, this will mean that you can record with the consent of one party to the communication. In others, you will still need to get everyone's consent. For details on the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recordingsection. In any event, it never hurts to play it safe and get the consent of all parties to a phone call or conversation that you intend to record. Who must give permission to record a telephone or in-person conversation? Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as

you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one-party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded. In addition to federal law, thirty-eight states and the District of Columbia have adopted "one-party consent" laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents. See the State Law: Recording section of this legal guide for information on state wiretapping laws. When must you get permission from everyone involved before recording? Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Although they are referred to as "two-party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people. See the State Law: Recording section of this legal guide for information on state wiretapping laws. Can you record a phone call or conversation when you do not have consent from one of the parties? Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented. Federal law and most state statutes also make disclosing the contents of an illegally intercepted telephone call illegal. See the section on Risks Associated with Publication in this guide for more information.

Recording Public Meetings and Court Hearings


Public Meetings Generally speaking, when you attend a public meeting of a government body that is required to be open to the public by law, you are free to record that meeting through note-taking, sound and video recording devices, and photography, so long as the method of recording used is reasonable and not disruptive. Your ability to do so, however, is based largely on state open meetings laws, and the details of these laws vary significantly. At least one court has held that there is no federal constitutional right to make a video recording of an open meeting, at least not when other methods are available for compiling a record of the proceeding, such as written and stenographic notes or audiotaping. Whiteland Woods, LLP v. Township of W. Whiteland, 193 F.3d 177 (3rd Cir. 1999). Government bodies may therefore place reasonable restrictions on the use recording devices, including a ban on certain devices, in order to preserve the orderly conduct of its meetings. For information on your right of access to the meetings of government bodies, please consult the Access to Government Information section of the guide and the Open Government Guideprepared by the Reporters Committee for Freedom of the Press. Even when no state open meetings law affirmatively gives you the right to record, many state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. If you are attending a meeting that is open to the public, it is likely that the people running a meeting or giving a speech should reasonably assume that they might be recorded. However, you should always take reasonable steps to make clear that you are recording. Concealing your camera or recording equipment is not a good idea.

For state-specific information about using recording equipment in public meetings, see theState Law: Recording section. Court Hearings The law regarding the use of audio and video recording devices in court hearings varies a great deal based on the state. In Chandler v. Florida, 449 U.S. 560 (1981), the U.S. Supreme Court held that the federal Constitution does not prohibit states from allowing cameras in the courtroom and that states may adopt their own rules permitting such recording equipment. Note that this ruling does not require states to allow recording in the courtroom, it only says that states may choose to do so. Since this ruling, all fifty states have adopted rules on the topic, but the rules vary widely. In some states, cameras and recording equipment are permitted in trial and appellate court proceedings, while in others recording is only allowed in appellate court proceedings. Most states give the court discretion to impose reasonable restrictions on the use of cameras and recording equipment in order to maintain the integrity of its proceedings and to otherwise serve the interests of justice. For state-specific information about recording in courtrooms, see the State Law: Recordingsection. The federal appellate courts may adopt their own rules regarding cameras and recording equipment in the courtroom. At the time of writing, only the Second Circuit and the Ninth Circuit Courts of Appeals allow recording equipment.
For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

State Law: Recording


Each state has its own wiretapping statute and its own rule on how many parties need to consent to the recording of a phone call or conversation in order to make it lawful. State law also varies on whether or not (and under what circumstances) you are permitted to use recording devices in public meetings and court hearings. Choose your state from the list below for state-specific information on recording laws.

California Recording Law District of Columbia Recording Law Florida Recording Law Georgia Recording Law Illinois Recording Law Indiana Recording Law Massachusetts Recording Law Michigan Recording Law New Jersey Recording Law New York Recording Law North Carolina Recording Law Ohio Recording Law Pennsylvania Recording Law Texas Recording Law

California Recording Law


Note: This page covers information specific to California. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

Virginia Recording Law Washington Recording Law

California Wiretapping Law


California's wiretapping law is a "two-party consent" law. California makes it a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. See Cal. Penal Code 632. The statute applies to "confidential communications" -- i.e., conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. See Flanagan v. Flanagan, 41 P.3d 575, 576-77, 578-82 (Cal. 2002). A California appellate court has ruled that this statute applies to the use of hidden video cameras to record conversations as well. See California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989). If you are recording someone without their knowledge in a public or semi-public place like a street or restaurant, the person whom you're recording may or may not have "an objectively reasonable expectation that no one is listening in or overhearing the conversation," and the reasonableness of the expectation would depend on the particular factual circumstances. Therefore, you cannot necessarily assume that you are in the clear simply because you are in a public place. If you are operating in California, you should always get the consent of all parties before recording any conversation that common sense tells you might be "private" or "confidential." In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Cal. Penal Code 637.2. Consult The Reporters Committee for Freedom of the Press's Can We Tape?: California for more information on California wiretapping law.

California Law on Recording Court Hearings and Public Meetings


Court Hearings In a California state courtroom, you may be able to use a recording device if specific requirements are met. Anyone may use an inconspicuous personal recording device for note-taking purposes with the advance permission of the judge. For photographing, recording (other than as above), or broadcasting a court proceeding, you must file official media coverage request forms. These forms must be filed with the court at least five days before the event to be covered. The court has broad discretion to grant or deny such requests based on a number of factors. See Rule 1.150 of the California Rules of Court for details. Federal courts in California are part of the Ninth Circuit. In Ninth Circuit appellate proceedings, cameras and recording devices are permitted at the discretion of the presiding panel of judges. To get permission, you need to file an Application for Permission to Photograph, Record, or Broadcast from the Courtroom three days in advance, although the panel can waive the advance notice requirement. Recording devices and cameras generally are prohibited in federal district courts in California. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings If you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in California, you may make an audio or video recording unless the state or local body holding the meeting determines that the recording disrupts the proceedings by noise, illumination, or obstruction of view. Cal. Gov't Code 11124.1(a); Cal Gov't Code 54953.5(a),-.6. For details on your right of access to public meetings, see the Access section and the The Reporters Committee for Freedom of the Press's Open Government Guide: California. For information on your right of access to public meetings, please consult the Access to Government Information section of the guide.

District of Columbia Recording Law


Note: This page covers information specific to the District of Columbia. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

DC Wiretapping Law
The District of Columbia's wiretapping law is a "one-party consent" law. DC makes it a crime to record a phone call or conversation unless one party to the conversation consents. SeeD.C. Code 23-542 (link is to the entire DC code; you need to click through to Title 23, Chapter 5, Subchapter III, and then choose the specific provision). Thus, if you operate in DC, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In addition to subjecting you to criminal prosecution, violating the DC wiretapping law can expose you to a civil lawsuit for damages by an injured party. Consult The Reporters Committee for Freedom of the Press's Can We Tape?: District of Columbiafor more information on DC wiretapping law.

DC Law on Recording Court Hearings and Public Meetings


Court Hearings District of Columbia "state" courts prohibit recording in both trial and appellate courtrooms. Federal courts in the District, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings The District of Columbia has no statutory provision about the use of recording devices or cameras at public meetings (i.e., meetings of a governmental body required to be open to the public by law), but the government body holding the meeting generally must make transcripts of the meeting available for public copying. For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: District of Columbia.

Florida Recording Law


Note: This page covers information specific to Florida. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Florida Wiretapping Law


Florida's wiretapping law is a "two-party consent" law. Florida makes it a crime to intercept or record a "wire, oral, or electronic communication" in Florida, unless all parties to the communication consent. See Fla. Stat. ch. 934.03. Florida law makes an exception for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are engaged in conversation in a public place where they might reasonably be overheard. If you are operating in Florida, you may record these kinds of in-person conversations without breaking the law. However, you should always get the consent of all parties before recording any telephone conversation and any in-person that common sense tells you is private. In addition to subjecting you to criminal prosecution, violating the Florida wiretapping law can expose you to a civil lawsuit for damages by an injured party. Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Florida for more information on Florida wiretapping law.

Florida Law on Recording Court Hearings and Public Meetings


Court Hearings Florida state courts generally allow the use of recording devices in the courtroom, both at the trial and appellate level. The presiding judge may prohibit recording devices from the courtroom only upon a showing that the presence of such devices will adversely affect the fairness or integrity of the proceedings. Federal courts in Florida generally prohibit the use of recording devices and cameras in the courtroom, both at the trial and the appellate level. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings If you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in Florida, generally you are permitted to use sound or video recording devices, so long as your recording does not disrupt the meeting. For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Florida.

Georgia Recording Law


Note: This page covers information specific to Georgia. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Georgia Wiretapping Law


Georgia's wiretapping law is a "one-party consent" law for purposes of making audio recordings of conversations. Georgia makes it a crime to secretly record a phone call or in-person conversation "originat[ing] in any private place" unless one party to the conversation consents. See Ga. Code 16-11-62(1), 16-11-66 (link is to the entire code; you need to click through to Title 16, Chapter 11, Article 3, Part I, and then choose the specific provisions). Therefore, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In addition, Georgia has a special provision regarding the use of a hidden video camera. The law makes it a crime to use a device to "observe, photograph, or record the activities of another which occur in any private place and out of the public view" unless the person making the recording gets the consent of all the persons observed. Ga. Code 16-11-62(2) (link is to the entire code; you need to click through to Title 16, Chapter 11, Article 3, Part I, and then choose the specific provision). In addition to subjecting you to criminal prosecution, violating these provisions can expose you to a civil lawsuit for damages by an injured party. Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Georgia for more information on Georgia wiretapping law.

Georgia Law on Recording Court Hearings and Public Meetings


Court Hearings You may record state court proceedings in Georgia, subject to a number of restrictions. At the trial court level, in order to record a court hearing, you must file a timely written request on a form provided by the court with the judge involved in the proceeding. The judge may decide to allow only one camera or recording device at a given time, and there is a prohibition on photographing or televising members of the jury. At the appellate court level, you must make a written request to the court at least seven days in advance, and radio and television media are required to supply the court with a video or audio of the covered proceedings. It is not clear whether this latter requirement would apply to online publishers creating audio podcasts, video podcasts, or other online media similar to radio and television. In the appellate court, limitations are imposed on the number of cameras and photographers allowed in the courtroom at any given time.

In the Georgia Supreme Court, recording, photographing, and broadcasting is allowed without prior approval unless it "distracts from the dignity of the proceeding." The Supreme Court retains the authority to "limit, restrict, prohibit, and terminate the photographing, recording, and broadcasting of any judicial session." Limitations are imposed on the number of cameras and photographers allowed in the courtroom at any given time. Federal courts in Georgia, both at the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings Georgia law expressly provides that "[v]isual, sound, and visual and sound recording during open meetings shall be permitted." Ga. Code 50-14-1 (link is to the entire code; you need to click through to Title 50, Chapter 14, and then choose the specific provision). For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Georgia.

Illinois Recording Law


Note: This page covers information specific to Illinois. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Illinois Wiretapping Law


Illinois's wiretapping law is a "two-party consent" law. Illinois makes it a crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties to the conversation. The law defines an "eavesdropping device" as "any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electronic communication whether such conversation or electronic communication is conducted in person, by telephone, or by any other means." 720 Ill. Comp. Stat. 5/14-1, -2. If you are operating in Illinois, you should always get the consent of all parties before recording an in-person conversation or telephone call. In addition to subjecting you to criminal prosecution, violating the Illinois wiretapping statute can expose you to a civil lawsuit fordamages by an injured party. While you generally are permitted to photograph or record video of people without permission in most public places, it is illegal in Illinois to "videotape, photograph, or film" people without their consent in "a restroom, tanning bed, or tanning salon, locker room, changing room or hotel bedroom." 720 Ill. Comp. Stat. 5/26-4(a) (scroll down). Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Illinois for more information on Illinois wiretapping lawyer.

Illinois Law on Recording Court Hearings and Public Meetings


Court Hearings In Illinois state trial courts, the use of sound and video recording devices is prohibited except by an order of the Illinois Supreme Court. Use of recording devices is permitted in hearings of the state appellate courts, but you must notify the clerk of the court at least five days in advance, and the appellate court may choose to prohibit recording. If media coverage is permitted, only one television and one still camera will be allowed at any given time. Federal courts in Illinois, both at the trial and appellate level, prohibit the use of sound and video recording devices in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings A provision of the Illinois open meetings law states that "any person may record the proceedings at meetings required to be open by this Act by tape, film or other means." The statute goes on, however, to say that the authority holding the meeting shall make "reasonable rules to govern the right to make such recordings." 5 Ill Comp. Stat. 120/2.05 (scroll down). For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Illinois.

Indiana Recording Law


Note: This page covers information specific to Indiana. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Indiana Wiretapping Law


Indiana's wiretapping law is a "one-party consent" law. Indiana makes it a crime to record a telephone conversation unless one party to the conversation consents. See Ind. Code 35-33.5-1-5 and Ind. Code 35-33.5-5-5. Therefore, you may record a telephone conversation if you are a party to the conversation or you get permission from one party to the conversation. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In-person conversations do not appear to be covered by the law, but it cannot hurt to get consent before recording just in case. In addition to subjecting you to criminal prosecution, violating the Indiana wiretapping law can expose you to a civil lawsuit for damages by an injured party. Ind. Code 35-33.5-5-4. Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Indiana for more on Indiana wiretapping law.

Indiana Law on Recording Court Hearings and Public Meetings


Court Hearings You are permitted to use recording devices in the Indiana Supreme Court and in Indiana appellate court proceedings. For the Indiana Supreme Court, you must make a request twenty-four hours before the start of the proceedings. For Indiana appellate courts, you must make a request forty-eight hours before the start of the proceedings. (Note that all appellate oral arguments are also webcast live and are available on-line.) As part of a pilot project that ended December 31, 2007, Indiana state trial courts allowed recording devices in court where both parties agreed. It is presently unclear whether this state of affairs will continue. Initial reports do not appear positive. Federal courts in Indiana, both at the trial and appellate level, prohibit the use of sound and video recording devices in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings If you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) in Indiana, the presiding body may not prohibit you from making a sound recording. See Ind. Code 5-14-1.5-3(a) (scroll down) (meetings of "governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them"). The precise status of video recording is less clear under the law, but in practice still photography and video recording are commonplace. For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Indiana.

Massachusetts Recording Law


Note: This page covers information specific to Massachusetts. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

Massachusetts Wiretapping Law


Massachusetts's wiretapping law is a "two-party consent" law. Massachusetts makes it a crime to secretly record an in-person or telephone conversation without the consent of all parties to the conversation. See Mass. Gen. Laws ch. 272, 99. If you are operating in Massachusetts, you should always get the consent of all parties before recording a telephone call or conversation, unless it is absolutely clear to everyone involved that you recording (i.e., it is not "secret"). This law applies to secret video recording when sound is captured. In a recent case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was

shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the court ordered thedefendant to remove the footage from the Internet. From this case, it is clear that you can violate the statute by secretly recording, even when you are in a public place. In addition to subjecting you to criminal prosecution, violating the Massachusetts wiretapping law can expose you to a civil lawsuit for damages by an injured party. Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Massachusetts for more information on Massachusetts wiretapping law.

Massachusetts Law on Recording Court Hearings and Public Meetings


Court Hearings Massachusetts Supreme Judicial Court Rule 1:19 says that judges should "permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public," with certain limitations. Members of the media must make a request to the court a reasonable time in advance of the proceeding. Courts generally do not allow recording devices in certain types of sensitive cases, and the judge retains the discretion to limit the use of recording devices to preserve the decorum of the court and the fairness of the proceeding. Seethis Massachusetts Bar Association post for details. Supreme Judicial Court oral arguments arewebcast and archived online. Federal courts in Massachusetts, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings Massachusetts open meetings law expressly permits sound and video recording of public meetings (i.e., meetings of a governmental body required to be open to the public by law), except for executive sessions, by anyone in attendance. The statute provides, however, that video equipment must be "fixed in one or more designated locations determined by the governmental body" and that the recording must not actively interfere with the conduct of the meeting. See Mass. Gen. Laws. ch. 39, 23B(9). For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Massachusetts.

Michigan Recording Law


Note: This page covers information specific to Michigan. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

Michigan Wiretapping Law


Michigan law makes it a crime to "use[] any device to eavesdrop upon [a] conversation without the consent of all parties." Mich. Comp. Laws 750.539c. This looks like an "all party consent" law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982). The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it. But, if you plan on recording a conversation to which you are not a party, you must get the consent of all parties to that conversation. In addition, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. Michigan law also makes it a crime to "install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place." Mich. Comp. Laws 750.539d. The law defines a "private place" as a place where a person "may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access." Mich. Comp. Laws 750.539a. You should always avoid these kinds of surveillance tactics. Michigan law also prohibits you from "us[ing] or divulg[ing] any information which [you] know[] or reasonably should know was obtained in violation of the other wiretapping laws. Mich. Comp. Laws 750.539e. To the extent this statute forbids you from publishing truthful information on a matter of public concern provided to you by a third-party (when you had no role in the wiretapping), it is probably unconstitutional. See Bartnicki v. Vopper, 532 U.S. 514 (2001).

In addition to subjecting you to criminal prosecution, violating these provisions can expose you to a civil lawsuit for money damages by an injured party. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Michigan for more information on Michigan wiretapping law.

Michigan Law on Recording Court Hearings and Public Meetings


Court Hearings Michigan law generally allows sound and video recording of state court proceedings, but you must request permission from the presiding judge at least three business days beforehand. The court has discretion to terminate or prohibit recording if it determines that it would be in the interests of justice. For instance, the court may exclude recordings of particularly sensitive witnesses or testimony involving confidential business information. Federal courts in Michigan, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide. Public Meetings When you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law), Michigan law gives you the right to make video and sound recordings of the meeting and to broadcast live. The exercise of this right is not dependent on prior approval by the public body, but the public body may establish reasonable rules and regulations to avoid disruption of meetings. Mich. Comp. Laws 15.263(1). For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Michigan.

Michigan Recording Law


Note: This page covers information specific to Michigan. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

Michigan Wiretapping Law


Michigan law makes it a crime to "use[] any device to eavesdrop upon [a] conversation without the consent of all parties." Mich. Comp. Laws 750.539c. This looks like an "all party consent" law, but one Michigan Court has ruled that a participant in a private conversation may record it without violating the statute because the statutory term "eavesdrop" refers only to overhearing or recording the private conversations of others. See Sullivan v. Gray, 342 N.W. 2d 58, 60-61 (Mich. Ct. App. 1982). The Michigan Supreme Court has not yet ruled on this question, so it is not clear whether you may record a conversation or phone call if you are a party to it. But, if you plan on recording a conversation to which you are not a party, you must get the consent of all parties to that conversation. In addition, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. Michigan law also makes it a crime to "install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place." Mich. Comp. Laws 750.539d. The law defines a "private place" as a place where a person "may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access." Mich. Comp. Laws 750.539a. You should always avoid these kinds of surveillance tactics. Michigan law also prohibits you from "us[ing] or divulg[ing] any information which [you] know[] or reasonably should know was obtained in violation of the other wiretapping laws. Mich. Comp. Laws 750.539e. To the extent this statute forbids you from publishing truthful information on a matter of public concern provided to you by a third-party (when you had no role in the wiretapping), it is probably unconstitutional. See Bartnicki v. Vopper, 532 U.S. 514 (2001). In addition to subjecting you to criminal prosecution, violating these provisions can expose you to a civil lawsuit for money damages by an injured party. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Michigan for more information on Michigan wiretapping law.

Michigan Law on Recording Court Hearings and Public Meetings

Court Hearings Michigan law generally allows sound and video recording of state court proceedings, but you must request permission from the presiding judge at least three business days beforehand. The court has discretion to terminate or prohibit recording if it determines that it would be in the interests of justice. For instance, the court may exclude recordings of particularly sensitive witnesses or testimony involving confidential business information. Federal courts in Michigan, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide. Public Meetings When you attend a public meeting (i.e., a meeting of a governmental body required to be open to the public by law), Michigan law gives you the right to make video and sound recordings of the meeting and to broadcast live. The exercise of this right is not dependent on prior approval by the public body, but the public body may establish reasonable rules and regulations to avoid disruption of meetings. Mich. Comp. Laws 15.263(1). For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Michigan.

New Jersey Recording Law


Note: This page covers information specific to New Jersey. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

New Jersey Wiretapping Law


New Jersey's wiretapping law is a "one-party consent" law. New Jersey makes it a crime to intercept or record an in-person or telephone conversation unless one party to the conversation consents. N.J. Stat. 2A:156A-3, -4. (link is to the entire code; you need to click through to Title 2A, Article 156A, and then locate the specific provisions). Thus, if you operate in New Jersey, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In addition to subjecting you to criminal prosecution, violating the New Jersey wiretapping law can expose you to a civil lawsuit for damages by an injured party. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: New Jersey for more information on New Jersey wiretapping law.

New Jersey Law on Recording Court Hearings and Public Meetings


Court Hearings New Jersey law places restrictions on your ability to make sound and video recordings in state courtrooms. First, the New Jersey Supreme Court guidelines permit audio and video recording for future broadcast only by those with "bona fide press credentials" issued by the New Jersey Press Association or those with identification from a "bona fide media outlet," defined as an "organization that reports the news and whose news reports are made available to the general public by being published or broadcast on a regular schedule by television, radio, retail sales, or by subscription where there is no membership or dues requirement to subscribe." This could present a substantial obstacle for amateur and other non-traditional journalists and online publishers. Second, you must make a request for permission a reasonable time in advance, and the court may limit media coverage where it has the potential to harm parties or witnesses. You may, however, appeal any denial of coverage to a state appellate court (if coverage was denied by a district court) or to the State Supreme Court (if coverage was denied by an appellate court). Recording devices are prohibited in certain particularly sensitive types of proceedings, such as those involving juveniles. In addition, the court may place restrictions on the number of cameras allowed into a courtroom at a particular time. For more detailed information, please consult the Supreme Court Guidelines for Still and Television Camera and Audio Coverage of Proceedings in The Courts of New Jersey. Federal courts in New Jersey, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.

Public Meetings New Jersey law allows sound and video recording devices in public meetings (i.e., meetings of a governmental body required to be open to the public by law), subject to reasonable restrictions, such as advance notice, that generally track those imposed in state courtrooms (above). For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: New Jersey.

New York Recording Law


Note: This page covers information specific to New York. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

New York Wiretapping Law


New York's wiretapping law is a "one-party consent" law. New York makes it a crime to record to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. N.Y. Penal Law 250.00, 250.05. (link is to the entire code, you need to click on the Penal Code section, then choose Article 250 and locate the specific provisions). Thus, if you operate in New York, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: New York for more information on New York wiretapping law.

New York Law on Recording Court Hearings and Public Meetings


Court Hearings New York state appellate courts permit recording subject to the approval of the particular court. Only two television cameras and two still cameras are allowed in the courtroom at any given time. New York trial courts do not allow recording devices in courtrooms. Federal appellate courts in the Second Circuit, which encompasses New York, permit sound and video recordings of oral arguments under certain circumstances. The Second Circuit does not permit recording of criminal matters, but "any person or entity regularly engaged in the gathering and dissemination of news" may record oral arguments in civil cases if they notify the calendar clerk no later than noon two days prior to the proceeding. The presiding judges have the discretion to exclude the media from the courtroom, and there are limitations on the number of cameras that will be allowed at any time. Recording devices are not permitted in federal district courts in New York. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings New York courts have held that persons attending a public meeting (i.e., a meeting of a governmental body required to be open to the public by law) have a right to tape or video record the meeting in an unobtrusive way. This does not mean that a governmental body holding a meeting cannot impose restrictions on the use of recording devices, but it may not ban such devices altogether. For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: New York.

North Carolina Recording Law


Note: This page covers information specific to North Carolina. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

North Carolina Wiretapping Law


North Carolina's wiretapping law is a "one-party consent" law. North Carolina makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. N.C. Gen. Stat. 15A-287. Thus, if you operate in North Carolina, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the

conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. In addition to subjecting you to criminal prosecution, violating the North Carolina wiretapping law can expose you to a civil lawsuit for damages by an injured party. N.C. Gen. Stat. 15A-296. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: North Carolina for more information on North Carolina wiretapping law.

North Carolina Law on Recording Court Hearings and Public Meetings


Court Hearings You may use a tape recorder in North Carolina state courtrooms if you obtain the permission of the presiding judge. You may use other recording devices, such as cameras, if you get the permission of the judge and keep them partitioned away from and unobserved by participants in the courtroom. The presiding judge may waive this requirement in certain cases. Only two video cameras and one still photographer are allowed in the court room at a given time, and coverage of certain types of sensitive cases (e.g., trade secrets cases, divorce cases) is prohibited. Federal courts in North Carolina, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings North Carolina law gives you the right to make sound and video recordings of public meetings (i.e., meetings of a governmental body required to be open to the public by law). The governmental body may "regulate the placement and use of equipment necessary for broadcasting, photographing, filming, or recording a meeting, so as to prevent undue interference with the meeting," but the body must allow equipment to be placed within the meeting room so as to permit its intended use, and "the ordinary use of such equipment shall not be declared to constitute undue interference." N.C. Gen. Stat. 143-318.14. For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: North Carolina.

Ohio Recording Law


Note: This page covers information specific to Ohio. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Ohio Wiretapping Law


Ohio's wiretapping law is a "one-party consent" law. Ohio law makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Ohio Rev. Code 2933.52. Thus, if you operate in Ohio, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. Additionally, consent is not required for oral communications (e.g., in-person conversations) where the speakers does not have a reasonable expectation of privacy in the communication. See Ohio Rev. Code 2933.51. This means that you are free to record a conversation happening between two people in a public place such as a street or a restaurant, so long as you are not using sensitive recording equipment to pick up what you otherwise would not hear. In addition to subjecting you to criminal prosecution, violating the Ohio wiretapping law can expose you to a civil lawsuit for damages by an injured party. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Ohio for more information on Ohio wiretapping law.

Ohio Law on Recording Court Hearings and Public Meetings

Court Hearings Ohio state courts generally allow the use of recording devices, but impose a number of important restrictions. Most importantly, witnesses and victims of crimes have a right to object to recording in state trial courts. If a witness or victim objects, the court will prohibit recording. In addition, you must get the consent of the presiding judge in advance, and the judge may impose limits on the number of recording devices in the courtroom at any given time. Courts may also establish their own local rules regarding recording devices. Federal courts in Ohio, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings While the Ohio open records law does not specifically state whether you can use recording devices at a public meeting (i.e., a meeting of a governmental body required to be open to the public by law), the Ohio Attorney General has an issued an opinion stating that using them is permissible when it does not unduly interfere with the meeting. As a matter of practice, recording devices apparently are common in Ohio public meetings. For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Ohio.

Pennsylvania Recording Law


Note: This page covers information specific to Pennsylvania. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

Pennsylvania Wiretapping Law


Pennsylvania's wiretapping law is a "two-party consent" law. Pennsylvania makes it a crime to intercept or record a telephone call or conversation unless all parties to the conversation consent. See 18 Pa. Cons. Stat. 5703 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter B, and then the specific provision). The law does not cover oral communications when the speakers do not have an "expectation that such communication is not subject to interception under circumstances justifying such expectation." See 18 Pa. Cons. Stat. 5702 (link is to the entire code, choose Title 18, Part II, Article F, Chapter 57, Subchapter A, and then the specific provision). Therefore, you may be able to record in-person conversations occurring in a public place without consent. However, you should always get the consent of all parties before recording any conversation that common sense tells you is private. In addition to subjecting you to criminal prosecution, violating the Pennsylvania wiretapping law can expose you to a civil lawsuit for damages by an injured party. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Pennsylvania for more information on Pennsylvania wiretapping law.

Pennsylvania Law on Recording Court Hearings and Public Meetings


Court Hearings Pennsylvania state courts generally prohibit the use of recording devices in the courtroom, both at the trial and appellate court level. However, individual judges may authorize recordings of non-jury civil trials, if both parties to the lawsuit consent. In that case, individual witnesses may object to recording and be excluded from coverage. Local courts may also establish additional rules. Federal courts in Pennsylvania, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide. Public Meetings

Recording devices are allowed in public meetings (i.e., meetings of a governmental body required to be open to the public by law) in Pennsylvania. Governmental bodies may adopt their own rules to maintain order at their meetings, but those rules may not include flat prohibitions on recording. For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Pennsylvania.

Texas Recording Law


Note: This page covers information specific to Texas. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Texas Wiretapping Law


Texas's wiretapping law is a "one-party consent" law. Texas makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Texas Penal Code 16.02 (link is to the Penal Code; you need to choose Chapter 16 and then the specific provision). Therefore, if you operate in Texas, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. The law does not cover oral communications when the speakers do not have an "expectation that such communication is not subject to interception under circumstances justifying such expectation." See Texas Crim. Proc. Code 18.20 (link is to the Code of Criminal Procedure; you need to choose Chapter 18 and then the specific provision). Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or a restaurant, without consent. In addition to subjecting you to criminal prosecution, violating the wiretapping law can expose you to a civil lawsuit for damages by an injured party. Texas Civ. Prac. & Rem. Code 123.002(link is the Code of Civil Practice and Remedies; you need to choose Chapter 123 and then the specific provision). Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Texas for more information on Texas wiretapping law.

Texas Law on Recording Court Hearings and Public Meetings


Court Hearings Texas law permits sound and video recording of state appellate proceedings, if you submit a request five days before the proceeding. These requests are subject to limitations imposed by the presiding judge. In state trial courts, use of sound and video recording devices is permitted with the consent of the trial judge, the parties, and each witness to be recorded. Additionally, a number of local rules imposing additional or different limitations apply in particular courts. Federal courts in Texas, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide. Public Meetings Sound and video recording devices may be used at public meetings (i.e., meetings of a governmental body required to be open to the public by law) in Texas, although the agency or other governmental body holding the meeting may impose "reasonable rules to maintain order at a meeting." Texas Gov't Code 551.023(b) (link is to the Government Code; you need to choose Chapter 551 and then the specific provision). For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Texas.

Virginia Recording Law


Note: This page covers information specific to Virginia. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.

Virginia Wiretapping Law


Virginia's wiretapping law is a "one-party consent" law. Virginia makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Virginia Code 19.2-62. Therefore, if you operate in Virginia, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties. The wiretapping law does not cover oral communications when the speakers do not have an "expectation that such communication is not subject to interception under circumstances justifying such expectations." See Virginia Code 19.2-61. Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or restaurant, without consent. But you should seek the consent of one or all of the parties before recording any conversation that an ordinary person would deem private. In addition to subjecting you to criminal prosecution, violating the Virginia wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Virginia Code 19.2-69. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Virginia for more information on Virginia wiretapping law.

Virginia Law on Recording Court Hearings and Public Meetings


Court Hearings Recording is allowed in Virginia state courtrooms at the sole discretion of the presiding judge. It is, however, flatly prohibited in certain types of sensitive cases (e.g., those involving juveniles or sexual offenses), and only two television cameras and one still photographer are allowed in a courtroom at any given time. Federal courts in Virginia, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom. For information on your right of access to court proceedings, please consult the Access to Government Information section of this guide. Public Meetings Virginia open meetings law provides that any person may "photograph, film, record or otherwise reproduce any portion of a meeting required to be open." However, the public body conducting the meeting "may adopt rules governing the placement and use of equipment necessary for broadcasting, photographing, filming or recording a meeting to prevent interference with the proceedings." Virginia Code 2.2-3707(H). For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Virginia.

Washington Recording Law


Note: This page covers information specific to Washington. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearingssection of this guide.

Washington Wiretapping Law


Washington's wiretapping law is a "two-party consent" law. Washington makes it a crime to intercept or record a private telephone call, inperson conversation, or electronic communication unless all parties to the communication consent. See Wash. Rev. Code 9.73.030(1). Whether a conversation or other communications is "private" depends on a number of case-specific factors, such as the subjective intention of the parties, the reasonableness of their expectation that the conversation would be private, the location of the conversation, and whether third parties were present. State v. Townsend, 57 P.3d 255, 259 (Wash. 2002). You should always get the consent of all parties before recording any conversation that common sense tells you is private. In Washington, you can satisfy the consent requirement by "announc[ing] to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted," so long as this announcement is also recorded. Wash. Rev. Code 9.73.030(3). In addition, an employee of a "regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or parttime basis" can establish the consent of the party recorded even without an announcement if he or she uses a recording or transmitting device that is "readily apparent or obvious to the speakers." Wash. Rev. Code 9.73.030(4).

The language of this consent provision suggests that it probably does not apply to an employee of an online publication or a non-professional journalist who is not employed by a media outlet on a full-time, part-time, or contractual basis. This limitation may be of little importance, however, because Washington courts have held -- in a non-media context -- that a person will be deemed to have consented to having his or her communication recorded when he or she conveys a message knowing that it will be recorded. See In re Marriage of Farr, 940 P.2d 679 (Wash. App. 1997) (speaker consented when leaving a message on a telephone answering machine, the only function of which is to record messages); Townsend, 57 P.3d at 260 (person sending email consented to its recording because he "had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent"). In addition to subjecting you to criminal prosecution, violating the wiretapping law can expose you to a civil lawsuit for damages by an injured party. See Wash. Rev. Code 9.73.060. Consult the Reporters Committee for Freedom of the Press's Can We Tape?: Washington for more information on Washington wiretapping law.

Washington Law on Recording Court Hearings and Public Meetings


Court Hearings Washington state courts generally permit the use of recording devices in the courtroom, although the presiding judge must give express permission before recording and may impose limitations when it would be distracting to the participants or impair the dignity of the proceedings. In 1963, Washington State lawyers, judges, and members of the press formed theBench-Bar-Press Committee, which seeks to foster better relationships between the bench and the press. The Committee publishes an annual report that may be of interest. Federal courts in Washington are part of the Ninth Circuit. In Ninth Circuit appellate proceedings, cameras and recording devices are permitted at the discretion of the presiding panel of judges. To get permission, you need to file an Application for Permission to Photograph, Record, or Broadcast from the Courtroom three days in advance, although the panel can waive the advance notice requirement. Recording devices and cameras generally are prohibited in federal district courts in Washington. For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide. Public Meetings Washington law allows you to use sound and video recording devices at public meetings (i.e., meetings of a governmental body required to be open to the public by law), unless they disrupt the orderly conduct of the meeting. For information on your right of access to public meetings, please consult the Access to Government Information section of this guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Washington.

Acquiring Documents and Other Property


Sometimes, you may want to acquire documents or other tangible property in order to develop a story or confirm the accuracy of facts learned from a source. This could include anything from a photograph to a computer hard drive to internal documents belonging to a company or government body. The following sections address some of the legal issues you could face in acquiring documents and other property:

Elements of Conversion: You should be aware that you generally are not permitted to take or even borrow other people's property without their permission. If you intentionally remove someone's property from their possession or deprive them of the use of that property for a substantial amount of time, you could be held liable for what is known as conversion. Receiving Documents and Information from Government Sources: If you receive classified documents or other information relating to national security from a government source, you may subject yourself to criminal liability under a complex array of federal espionage-related laws. Practical Tips for Acquiring Documents and Other Property: Check here for some practical tips for minimizing your risk of a lawsuit or criminal prosecution when acquiring documents and other property for newsgathering purposes.

Elements of Conversion

Elements of Conversion

Receiving Documents and Information from Government Sources Practical Tips for Acquiring Documents and Other Property

Conversion is a tort that exposes you to liability for damages in a civil lawsuit. It applies when someone intentionally interferes with personal property belonging to another person. To make out a conversion claim, a plaintiff must establish four elements:

First, that the plaintiff owns or has the right to possess the personal property in question at the time of the interference; Second, that the defendant intentionally interfered with the plaintiff's personal property (sometimes also described as exercising "dominion and control" over it); Third, that the the interference deprived the plaintiff of possession or use of the personal property in question; and Fourth, that the interference caused damages to the plaintiff.

The most direct and obvious way to commit conversion is by taking personal property that belongs to someone else without permission. For example, if you take a framed photograph from the wall of a local restaurant or a document from someone's desk, you may be held liable for conversion, assuming you retain the property for a substantial period of time and thereby interfere with the rightful owner's use and possession of it. It does not matter whether you intend to publish the information, photos, or other content. However, if you remove paperwork or photographs from someone's office or home temporarily in order to copy the information -- intending to return the documents to the owner -- you might not be liable for conversion because this temporary interference does not necessarily deprive the rightful owner of the possession or use of the property. See Harper & Row Pubs. v. Nation Enters., 723 F.2d 195, 201 (2nd Cir. 1983) ("Conversion requires not merely temporary interference with property rights, but the exercise of unauthorized dominion and control to the complete exclusion of the rightful possessor."). You should be aware that taking property from someone can also expose you to criminal liability under state laws. You can also commit conversion by receiving and retaining property from someone who does not have the right to give the property away. This issue could come up when you receive documents from sources. For example, if a bank employee gives you checking account records for bank customers, you may both be liable for conversion because the employee likely does not have permission from his or her employer to turn over a customer's records. But the legal analysis is not that simple, and whether or not you could be held liable for conversion under these circumstances depends on whether the records you receive are originals or copies. As a rule of thumb, you can generally receive and retain copies of documents that belong to someone else, but you may not receive and retain the originals of such documents. The reason is that "the possession of copies of documents -- as opposed to the documents themselves -- does not amount to an interference with the owner's property sufficient to constitute conversion."FMC Corp. v. Capital Cities/ABC, Inc., 915 F.2d 300, 303 (7th Cir. 1990). However, you may be held liable for conversion for receiving and retaining copies if the rightful owner no longer has either originals or copies of the documents in question. Even if you are held liable for conversion and must return the documents in question, you generally are entitled under the First Amendment to retain copies of the documents for yourself and to disseminate any information contained in them. See id. at 304-05. If you receive classified documents or other information relating to national security from a government employee, you may subject yourself to criminal liability under federal espionage-related laws. See the section on Receiving Documents and Information from Government Sources for details.

Receiving Documents and Information from Government Sources


If you receive documents or other information relating to national security from a government employee (or other person who is authorized to access government documents and information), you could be criminally prosecuted for conspiring with that government employee to violate the federal Espionage Act, located at 18 U.S.C. 793, or for aiding and abetting that employee's violation of the Act. In a recent and highly controversial case, the Department of Justice prosecuted two lobbyists for the American Israel Public Affairs Committee (AIPAC) for conspiring with a former government employee to transmit national defense information to those "not entitled to receive it" in violation of 18 U.S.C. 793. The indictment alleges that the two lobbyists cultivated a relationship with the former employee in order to gather national defense information relating to U.S. foreign policy in the Middle East and transmitted the information to members of the media, foreign policy analysts, and foreign officials. The indictment further charges one of the lobbyists for aiding and abetting the former employee's illegal disclosure of classified national security information by providing a fax machine on which to receive the employee's

communications. The federal district court hearing the case held in 2006 that the prosecution did not violate the First Amendment to the U.S. Constitution. United States v. Rosen, 445 F. Supp.2d 602 (E.D. Va. 2006). While the Department of Justice did not prosecute any members of the press in the AIPAC case, prosecutors could conceivably apply the same laws to journalists who receive sensitive government information through leaks from government insiders. This prospect is especially worrisome given the government's longstanding practice of making use of "controlled leaks" to get desired information out to the public. Besides 18 U.S.C. 793, other federal criminal statutes could apply to the receipt and publishing of sensitive government information from government insiders, including 18 U.S.C. 794 (relating to dissemination of national defense information to an agent of a foreign government), 18 U.S.C. 798 (relating to the dissemination of classified information about U.S. intelligence activities), the Atomic Energy Act (relating to the dissemination of information relating to nuclear weapons), the Intelligence Identities Protection Act of 1982 (relating to identification of intelligence agents),and 18 U.S.C. 649 (relating to the theft and receipt of government records and "thing[s] of value"). All of these statutes, including the Espionage Act, require the government to prove some level of bad intent on the part of thedefendant. The government has not previously prosecuted journalists under these provisions, but there is some cause for concern in the future as online publishing blurs the line between journalism and more suspect (at least from the government's point of view) forms of information sharing.

Practical Tips for Acquiring Documents and Other Property


There are a few simple things to keep in mind in order to minimize your risk of a lawsuit or criminal prosecution when acquiring documents and other property for newsgathering purposes:

Before you take possession of any documents or other personal property, you should get the express permission of the owner of that property or the person who has the right to possess it. Take the time to figure out who this actually is. Even if you only plan on borrowing documents for a short period of time in order to make copies (which you may be legally entitled to do), it is safer and more ethical to get permission first. Remember that personal property includes tangible items (e.g., photographs, papers, and computers) and intangible items (e.g., domain names and confidential business information). When you receive documents from a source, ask the source whether they are originals or copies. If they are originals, make copies and ask the source to return the originals. If they are copies, you might want to make duplicates of them, in case they are the only extant versions. If you receive a demand for the return of documents received from a source, you should consider making copies of the documents in question and returning the ones you received. Act with caution when dealing with a source who is a present or former government employee or someone with special access to sensitive government information. Be aware that, while it has not happened yet, the federal criminal laws are potentially broad enough to punish you for receipt and dissemination of this kind of information.

Documenting Public Proceedings and Events


The question of who is a journalist - and by extension, what is journalism -- has come into sharp relief in the context of citizen media coverage of public events, including access to and reporting at election events, court proceedings, conferences, sporting events, and breaking news. A critical issue for citizen media coverage of these public events is, of course, access to the events in the first place. Citizen media's access, however, often implicates challenging legal questions. What credentials are necessary and legally appropriate? What protections does the First Amendment provide for "citizen newsgathering" activities in these contexts? Can non-professional journalists be excluded when professional journalists are permitted access? As live-blogging, twittering, and other technologies become more widespread, we expect to see the tension between citizen media creators and event organizers become more pronounced. In this section of the guide we discuss your rights to access and document public proceedings and events.

Live-Blogging and Tweeting from Court - a guide to covering court proceedings using real-time communication technologies such as Twitter, live-blogging, and streaming. Various court rules may affect your ability to provide real-time coverage of court proceedings. These pages provide practical advice on how to avoid legal trouble if you intend to provide live coverage from inside the courthouse, including interviews with journalists and bloggers who have navigated these waters.

Documenting Activities at Polling Places - an examination of the laws that impact voters' ability to document their own voting experiences through video and still photography, as well as their ability to carry out other newsgathering functions, such as interviewing other voters outside of polling places. Note that access polling places and the use of photography and video equipment is largely dictated by state law and varies significantly from place to place.

Documenting the 2009 Presidential Inauguration - a primer on attending and documenting the 2009 Presidential Inauguration in Washington, DC. Heightened security measures will be in place across the Washington area that will affect where you can go, what you can bring with you, and what you can do to document the Inauguration. The primer also includes information on requesting official press credentials.

Live-Blogging and Tweeting from Court Documenting Your Vote Documenting the 2009 Presidential Inauguration

Live-Blogging and Tweeting from Court


Overview The popularity of Twitter and live-blogging has introduced a new dimension into a journalist's coverage of court proceedings. The use of these real-time communications technologies has been met with a mixture of both acceptance and criticism from judges and lawyers. Note that this section discusses coverage of court proceedings by observers who are not involved in the actual proceedings. Different rules apply to trial participants: in many situations, those involved in a court proceeding -- as a party, a lawyer, a court official, a juror or a witness -- may be prohibited from discussing the proceeding, or limited in what they can say about it, especially while it is pending. If you are involved in a court proceeding, make sure that you understand any restrictions that may apply. For those not directly involved in a proceeding, various court rules may affect the ability of a journalist or member of the public to live-blog or tweet from the courtroom. In particular, a court's administrative or local rules may prohibit or limit the use of electronic devices within a courthouse or courtroom. In some jurisdictions, the local rules allow electronic devices only at the discretion of the presiding judge. Rules of civil or criminal proceduresuch as Rule 53 of the Federal Rules of Criminal Procedure have been interpreted as prohibiting or limiting live-blogging and tweeting from certain proceedings. Ultimately, the application of many of these rules rests in the judge's discretion, and they may not be applied evenly within a jurisdiction. Many judges are concerned that live-blogging or tweeting from inside the courtroom may adversely impact the administration of justice. They believe access by witnesses to real-time posting about a trial may taint testimony and undermine the fairness of the trial. Clicking noises from keyboards and beeping from electronic devices may be unwanted physical distractions during proceedings. Certain types of sensitive subject matter, such as testimony from a minor during a custody proceeding, may also give a judge pause before consenting to real-time coverage. Despite these concerns and potential legal limitations, many judges are slowly warming to the idea. Some even welcome the use of computers and cell phones in the courtroom as a way to make the judicial system more accessible and transparent to the public. For example, Judge Mark Bennet of the United States District Court for the Northern District of Iowa said in aninterview with the ABA Journal, "I thought the public's right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant. . . . I allowed it because of my belief that we are the most mysterious branch of federal government and we need to find ways to be more transparent." Similarly, Judge Thomas Marten of the United States District Court for the District of Kansas told the Associated Press (as reported in the New Mexico Independent), "[t]he more we can do to open the process to the public, the greater the public understandingthe more legitimacy the public system will have in the eyes of the public." Below are guidelines to help you avoid legal trouble if you intend to provide live coverage of court proceedings through Twitter, live-blogging or other social media tools. Guidelines for Tweeting and Live-Blogging From Court Finding Information About Court Rules and Asking for Permission 1. Start by determining where the proceeding you are interested in covering will be held and which judge will be presiding. 2. Check the local rules of the courthouse and/or jurisdiction in question. You usually can find local rules on the courthouse's website. The local rules may list special provisions concerning the use of computers and other electronic devices in the courthouse or courtroom. For

instance, the local rules might say that the general public cannot bring a computer or cellphone into the courthouse without the permission of a judge. Or, the rules might provide that electronic devices may not be used inside a courtroom without permission, but may be used in the hallways outside the courtrooms. Many variations exist. 3. Check the court's standing orders, free-standing electronic device policies, and the judge's individual preferences. Courthouse-wide standing orders and electronic device policies will be located on the courthouse's website, and an individual judge's standing orders and preferences will be on a page dedicated to that judge. These materials may provide additional information not addressed in the local rules, such as special limitations on the use of electronic devices in a particular judge's courtroom or information on how to get permission to use a device. For an example, see United States District Court for District of New Jersey Standing Orders. 4. If the local rules or standing orders do not include any information concerning the use of electronic devices, look for information on whom to contact with questions, and whether the court has a specific procedure for obtaining journalist credentials. 5. If you're confused about how the rules apply to live-blogging or tweeting, or about press credentials, try contacting the court's Public Information Officer (or "PIO"). The PIO generally responds to media inquiries and processes credential requests. You can find contact information for many court PIO's at the Conference of Court Public Information Officers website. 6. Lastly, try contacting the judge and/or the judge's staff. We say lastly only because the judge is generally very busy and often does not deal with media requests directly. As a result, your request may be overlooked, or you may anger the judge. Successful live-bloggers have told us that, unless you have an established relationship with a particular judge, you will have better success bringing the request to a bailiff, PIO, or other member of the judge's staff who can then bring the matter to the judge's attention. Additional Tips When Asking for Permission 1. Give the judge or PIO a good reason to approve your request. Successful requests for permission have generally focused on:

The nature and public benefit of blogging or tweeting; The public interest in the case; The reporter's professional experience or credentials; and An explanation of how the technology works.

2. Use your connections. Many of those bloggers and reporters who have previously obtained permission to live-blog a trial already had an established relationship with the judge, bailiff, or PIO. A friendly ear goes a long way. The Media Bloggers Association (MBA) has been advocating for the admittance of bloggers in courtrooms since 2004 and has established relationships with PIOs across the country. The MBA may be able to use its connections to help bloggers who have had trouble bringing their requests to the attention of a PIO or judge. You can contact the MBAfor more information. 3. Search online to see if anyone else has live-blogged a trial in the courthouse in question or before the judge in question. If so, try contacting that blogger/journalist to learn what steps he or she took. Below is a list of some judges that have previously allowed live-blogging in their courtrooms. [Note: the fact that these judges have allowed live-blogging in the past does not guarantee that they will allow it in the future]:

California: Superior Court of California, County of Alameda, Judge Larry Goodman (coverage) Colorado: Colorado State Judcial Branch, 20th District, Boulder County, Judge Lael Montgomery (coverage) Florida: United States District Court for the Southern District of Florida, Chief Judge Federico Moreno (coverage) Iowa: United States District Court for the Northern District of Iowa, Judge Mark Bennett (coverage) Kansas: United States District Court for the District of Kansas, Judge Thomas Marten (coverage) Michigan: Ottawa County, 20th Circuit Court, Chief Judge Edward Post (coverage) Pennsylvania: United States District Court for the Eastern District of Pennsylvania, Judge Ronald Buckwalter (coverage) Washington, DC: United States District Court for the District of Columbia, Judge Reggie Walton (coverage) Massachusetts: United States District Court for the District of Massachusetts, Judge Nancy Gertner (coverage)

4. Remember to conduct yourself in a professional and respectful manner. An overly aggressive request may not be given priority, especially in a busy courthouse. 5. Finally, where you have not been expressly forbidden from bringing a computer or phone into the courthouse, you may consider just showing up the day of the trial with your computer or smart phone and letting the chips fall where they may, but recognize that this approach may anger the judge, and could even result in confiscation of the electronic device or fines. Use your judgment, be cautious, and certainly do not ignore a judge's decision or a court rule directly on point. To make the process of getting permission more concrete for you, we've created a page featuring input we received from bloggers and journalists about their experiences live-blogging or tweeting from court proceedings. See Live-Blogging and Tweeting from Court: Experiences From the Field.

A Note About Federal Criminal Proceedings: In United States v. Shelnutt, 4:09-cr.-14 (M.D. Ga. Nov. 2, 2009), a federal district court in Georgia ruled that Rule 53 of the Federal Rules of Criminal Procedure prohibits tweeting from criminal proceedings in federal court and that Rule 53 does not unconstitutionally restrict the freedom of the press under the First Amendment to the U.S. Constitution. Rule 53 provides: Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom. The court interpreted "broadcasting" in Rule 53 to include "sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing." This district court opinion has no precedential effect on other courts, and it remains to be seen whether other federal courts will adopt this interpretation of Rule 53. Regardless of how influential the Shelnutt case ends up being, Rule 53 only applies to criminal proceedings, and it only applies in federalas opposed to statecourts.

Live-Blogging and Tweeting From Court: Experiences From the Field

Live-Blogging and Tweeting From Court: Experiences From the Field


In conjunction with our legal guide on live-blogging and tweeting from court, the CMLP staff conducted interviews with journalists and bloggers with experience live-blogging or tweeting from court. The following accounts are summaries of the interviews and include individual experiences from journalists detailing: successful and unsucessful attempts, correspondence with judicial staff and courthouse officials, general observations, and other practical issues encountered. Trish Mehaffey, The Cedar Rapids Gazette Trish Mehaffey, the courts reporter for The Cedar Rapids Gazette, has had a number of successful experiences live-blogging proceedings in both federal and state court. Recently,District Judge Mark Bennett of the United States District Court for the Northern District of Iowa permitted Mehaffey to live-blog a high-profile insurance fraud case. According to Mehaffey, Judge Bennett generally allows laptops in his courtroom, but permission is required in order to live-blog or tweet. (Northern District Local Rule 83.4(b) permits electronic devices in the courtroom if authorized by order of the court.) Mehaffey asked Judge Bennett for permission to live-blog the proceedings prior to the trial. She contacted Judge Bennett via phone and email and explained her interests and proposed methods of coverage. She emphasized that the changes in the news business and explained that satisfying the demand for digital coverage in real-time is important to The Gazettes business interests. Judge Bennett took several days to consider the request and eventually permitted it. Judge Bennetts chief concern was physical distractions to the jury or attorneys from keyboard noise. In his correspondence, the judge noted that if noise became a problem during the trial, he would simply ask Mehaffey to stop typing or to move to a different area in the spectator gallery. Mehaffey also was allowed to live-blog additional hearings in the same case before Chief Magistrate Judge Paul Zoss. In her email correspondence with Judge Zoss, Mehaffey reiterated that she would only be providing coverage in text and would not capture any audio or video of the proceedings. Judge Zoss granted the request under the same conditions as Judge Bennett. In Mehaffey's experience, other judges in the Northern District of Iowa are not as amenable to live-blogging and tweeting. For instance, Mehaffy tells us that Chief District Judge Linda Readedoes not allow laptops in the courtroom. When Mehaffey is covering proceedings before Chief Judge Reade, she leaves the courthouse and writes blog posts from her car. You can find more information on Trish Mehaffey and her coverage of legal proceedings on The Gazette's website. Ben Sheffner, Copyrights & Campaigns Former journalist Ben Sheffner is a copyright, First Amendment, and entertainment law attorney. In addition to practicing law, Sheffner maintains the Copyrights & Campaigns blogand writes for Billboard; his work has also been featured on Ars Technica and Slate. In 2009, Sheffner covered two high-profile copyright infringement trials, Capitol Records, et al. v. Jammie Thomas-Rasset and Sony BMG Music Entertainment, et al. v. Joel Tenenbaum. He had different experiences covering each through Twitter and his blog. The Thomas-Rasset trial was held in the United States District Court for the District of Minnesota. The local rules in this district permit laptops and cell phones in the courthouse, but use of the devices is prohibited within the courtrooms. Sheffner tells us that Chief District

Judge Michael Davis, who presided over the trial, clearly indicated the use of electronic devices within the courtroom was prohibited. Sheffner said a notice was posted directly outside the courtroom reiterating the prohibition. According to Sheffner, at one point during the trial, court room security officers caught an attorney, who was also observing the proceedings, using his BlackBerry in the courtroom. The security officers informed Judge Davis, who called the attorney to the well and publicly reprimanded him. Based on the rules and clear notice, Sheffner did not ask for permission to tweet or blog from the courtroom during the trial. Instead, Sheffner tweeted via BlackBerry from the hallway outside the courtroom and made use of a media room on another floor that had Internet access and desks for use by journalists. In the United States District Court for the District of Massachusetts, Sheffner had a much different experience during the Tenenbaum trial. The District of Massachusetts' policy regarding electronic devices prohibits electronic devices in the courthouse except for attorneys and credentialed journalists. Sheffner noted that although he already qualified under the exception as a member of the California bar, he also acquired a Media Identification Card from the court's Administrative Office several weeks prior to the trial. The requirements for the Media Identification card included a short application form and two letters of reference from media organizations for which he had freelanced. Based on his previous work for Slate and Ars Technica, he did not have any difficulty obtaining press credentials. Sheffner cautioned, however, that it was not clear whether the court officials would grant credentials to individual bloggers, amateur journalists, or others who are not affiliated with established media organizations. Also, Sheffner noted that presiding District Judge Nancy Gertner announced early in the trial that the use of laptops and cellular devices in the courtroom was permissible and he did not need to ask for further permission. Although the use of electronic devices was authorized during the Tenenbaum trial, and he was able to take notes on his laptop, Sheffner encountered a number of non-legal, practical problems when attempting to tweet the Tenenbaum trial. Sheffner explained that the courthouse had overall weak cellular reception and he was unable to actually send updates from his BlackBerry within the courtroom; nor was there wireless Internet service available in the courthouse. On the final day of the trial, Sheffner discovered that there was a wired ethernet jack available in the area where the trial attorneys were sitting. Sheffner was able to tweet by laptop after extending a cable into the jack from the spectators' gallery and paying for Internet access, but he noted it was very inconvenient and was not sure whether he would have had access to the ethernet jack during the substantive portions of the trial, when it was needed by the attorneys. Sheffner's account of the Thomas-Rasset trial can be found on Copyrights & Campaigns, and his coverage of the Tenenbaum trial appears on Ars Technica. Henry Lee, San Francisco Chronicle Henry Lee, a staff writer for the San Francisco Chronicle, tells us the Superior Court of California, Alameda County, has a policy that prohibits laptops and cellular devices, such as BlackBerries, in the courtrooms. In the past, Lee had covered trials with paper notes by hand in the courtroom and took breaks or waited for the court to recess until typing his notes on a computer. While covering the Hans Reiser murder trial, Lee and a group of reporters approached Judge Larry Goodman and requested permission to use laptops and smart phones while covering the trial. According to Lee, Judge Goodman is very media friendly and permitted the request without any additional restrictions even though the request was not made before the trial began. Judge Goodman also allowed the sentencing to be filmed by a camera crew. The court bailiffs were notified of the accommodation due to its unusual character. Lee also noted that, in his experience, the courts have not made any distinctions between members of the public or members of the press when it comes to the use of electronic devices during proceedings. Lees account of the trial can be found on the San Francisco Chronicles website.

Documenting Your Vote


In order to protect voters from interference and intimidation, state governments have enacted a complex array of election laws that regulate what activities are permitted at polling places on Election Day. These laws impact your ability to shoot video or take photographs at a polling place, even if your purpose is just to document your own voting experience. In the vast majority of states, these laws make a distinction between what you can do inside a polling place and what you can do outside a polling place. The laws are more restrictive when it comes to activities inside and within certain buffer zones around the entrance, which are typically 100 feet from the entrance or interior voting area. Outside of the polling place and these buffer zones, your ability to document your voting experience is much freer. Because there is no single, national law regulating polling place activities, it is difficult to generalize about what you can and cannot do on Election Day. You must consult your state's law in order to make sure that your proposed activities are legal. Nevertheless, the following four general guidelines can help you stay within the law while documenting your vote.

Guidelines for Avoiding Legal Trouble


1. Follow the Rules If you want to take photographs or shoot video inside your polling place, you must be cautious to avoid violating the law. Election laws are serious business you could be removed from the polling place and even subject to criminal penalties. Some states like Florida, Georgia, Kentucky, Michigan, Nevada, North Carolina, Texas and West Virginia expressly prohibit the use of photographic and recording equipment

inside polling places. In these states, you should respect the law and refrain from doing any recording or photographing inside. In other states, the election laws are not clear regarding the use of personal photographic and video equipment. At the bottom of this page we've created a chart summarizing the law and on our State Law: Documenting Your Vote page you will find additional information and links to resources to help you determine where your state falls on this issue. If are unsure as to what is permitted, contact your local election officials or ask a poll worker. 2. Be Discreet Even if you are permitted to take photographs or video inside, you should be discreet and sensitive to the concerns of poll workers and other voters. The smaller your equipment is, the better. You are more likely to get permission, and less likely to intimidate other voters, if you use a cell phone camera, rather than a bulky on-the-shoulder video camera or a fancy SLR with a huge telephoto lens. It will also help if you stick to documenting your own experience rather than documenting the activities of others. In addition, dont linger inside the polling place after youve cast your vote. Do your civic duty and then proceed out of the building in an orderly fashion. 3. Dont Interfere With Voters or Disrupt the Process Keep in mind that all states prohibit activities that interfere with the voting process or intimidate voters, and poll workers and other voters might see your photographing or videotaping as disruptive or intimidating. You should never photograph or film someone elses ballot or get too close to other voters with your camera. If a voter objects, stop filming that person immediately. Dont try to interview other voters inside the polling place and avoid any appearance of trying to solicit or influence someone elses vote. Leave your buttons, stickers, hats, and other party paraphernalia at home. 4. Respect the Buffer Zone Outside You can do more outside of polling places. Still, there are some things to keep in mind. Many states have restricted buffer zones, typically 100 feet outside the entrance to the polling place. In these zones, you generally cant loiter, interfere with voters, block the entrance, or engage in any campaigning activity. Although many state laws do not specifically mention filming in these zones, its probably safer to shoot outside of the buffer zone, unless youve confirmed that your state law allows it. These buffer zones may be marked off with signs or a chalk line. Or you may be able to determine where the line is by looking for where other people are engaging in electioneering activity freely, or where members of the traditional media or exit pollsters are set up. Outside the buffer zone, you can film freely, use a larger camera, and interview voters. You should still be courteous to others and make every effort not to interfere with anyones ability to get to the polls. When interviewing a voter, first get the voter's permission. If possible, get written permission or record verbal permission on video. Explain to the voter what you intend to do with the video (such as uploading it to the Internet) and get their permission to use their name and likeness for that purpose. To help you better understand these guidelines, we've created this short video:

State Resources
For specific resources for your state, including a list of election laws, websites, and contact information for election officials in all 50 states and the District of Columbia, see our State Law: Documenting Your Vote page or select one of the links below to go directly to that state's relevant information. (Note: this chart is a work-in-progress. If you have additional information on this topic, please contact us.)

State

State Law Expressly Prohibits All Recording Inside Polling Place

State Law Doesn't Expressly Prohibit All Recording Inside Polling Place * see below X X

State Officials Take Position Recording Prohibited Inside Polling Place

Public Display of Own Marked Ballot Prohibited ** see below

Alabama Alaska Arizona Arkansas California Colorado

? X X ? X X X

Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada X X X X

X X X

? X ? X X X X X X ? X X X X X

X X X

X X X X X X X X X X

X X ? ? X X X X X X X

New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming X X X

X X X X

X X X X X

X X X X X X X X X X X X X X X X X X X X X X X X ?

* Nearly all states prohibit conduct that intimidates voters, interferes with their exercise of the right to vote, or disrupts the voting process. Election officials may take the view that photography or videography runs afoul of these laws.

** "Public display of own marked ballot" refers to the practice of photographing or filming one's own vote at the time of voting and afterwards displaying the image on a publicly accessible platform like the Internet. Streaming live video of your own marked ballot may create legal problems in additional states. "?" means the law is unclear. Keep in mind that states have these laws to prevent vote buying and coercion, so you should be cautious of publicly posting your ballot.

YOUTUBE video link http://www.youtube.com/watch?v=DKhTNNXJIJQ&feature=player_embedded

State Law: Documenting Your Vote


On this page, we provide a list of election laws, websites, and contact information for election officials in all 50 states and the District of Columbia. Contacting your state election officials is a great way to get information about what your state allows in terms of documenting the vote. You should also consult our chart summarizing the law in each state in order to determine whether your state allows recording inside polling places. For general guidelines on photography and videography in and around polling places, see the Documenting Your Votepage in this guide. As Election Day approaches, we will continue to supplement the information on this page. Given the tight time schedule between now and the election, we'd love the help of our readers with this election law research. If you've got input on this topic, please contact us. Select a state below to jump to its relevant information:

Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware

Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky

Maryland

New Jersey

South Carolina South Dakota Tennessee

Massachusetts New Mexico Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New York

North Carolina Texas North Dakota Ohio Oklahoma Oregon Pennsylvania Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

Dist. of Columbia Louisiana Florida Maine

New Hampshire Rhode Island

Alabama

Contact Information: o Alabama Secretary of State- Elections Website o Telephone number: (334) 242-7210 o Toll free number: 800-274-8683

Relevant Law:

o o o o

Ala. Code 17-9-50 - Proximity of persons to polling place Ala. Code 17-17-17 - Loitering about polling place; standing in line of voters after having voted Ala. Code 17-17-33 - Obstruction, intimidation, etc., of voting rights of others Ala. Code 17-17-43 - Disturbing elector on election day

Alaska

Contact Information: o Alaska Division of Elections o Telephone number: (907) 465-4611 o Toll free:(866) 952-8683

Relevant Law:

o o o o

Alaska Stat. 15.15.290 - Prohibiting the identification of ballots Alaska Stat. 15.56.030 - Unlawful interference with voting Alaska Stat. 15.56.060 - Unlawful interference with an election Link to Alaska Statutes, Title 15 - Elections

Arizona

Contact Information: o Arizona Secretary of State- Elections Website o Telephone number: (602) 542-8683 o Toll Free: (800) 458-5842

Relevant Law:

o o o

Ariz. Rev. Stat. 16-515 - "Seventy-five foot limit" notices; posting; violation; classification Ariz. Rev. Stat. 16-1017 - Unlawful acts by voters with respect to voting; classification Ariz. Rev. Stat. 16-1018 - Additional unlawful acts by voteres with respect to voting; classification

Other Resources:

Arizona: Documenting Your Vote

Arkansas

Contact Information: o Arkansas Secretary of State- Elections Website

o o

Telephone number: (501) 682-5070 Toll free: (800) 482-1127

Relevant Law:

o o o o o o

Ark. Code 7-1-103 - Miscellaneous misdemeanor offenses Ark. Code 7-1-104 - Miscellaneous felonies Ark. Code 7-5-309 - Voting procedure Ark. Code 7-5-310 - Privacy -- Assistance to disabled voters Ark. Code 7-5-521 - Arrangement of polling place Link to Arkansas Code

California

Contact Information: o California Secretary of State- Elections Website o Telephone number: (916) 657-2166 o Toll free number: (800) 345-VOTE

Relevant Law:

o o o o o o o

Cal. Const. Art. II, 7 - Voting shall be secret Cal. Elec. Code 18502 - Interference with voters Cal. Elec. Code 18540 - Intimidation prohibited Cal. Elec. Code 18541 - Actions prohibited within 100 feet of polling place Cal. Elec. Code 14221 - Persons allowed within voting booth area Cal. Elec. Code 14224 - Limiting time within voting booth Cal. Elec. Code 14291 - Revealing content of ballot

Other Resources:

o o o

Memo of Cathy Mitchell to County Clerks/Registrars of Voters re Cameras At Polling Places (Oct. 20, 2008) Memo of John Mott-Smith to County Clerks/Registrars of Voters re Cameras or Videotaping at Polling Places (Oct. 27, 2004) California: Documenting Your Vote

Colorado

Contact Information: o Colorado Secretary of State- Elections Division o Telephone number: (303)894-2200 o E-mail: sos.elections@sos.state.co.us

Relevant Law:

o o o o

Colo. Rev. Stat. 1-13-711 - Interference with voter while voting Colo. Rev. Stat. 1-13-712 - Disclosing or identifying vote Colo. Rev. Stat. 1-13-713 - Intimidation Link to Colorado Revised Statutes (click on "Colorado Revised Statues," then "Title 1: Elections," then "Art. 13")

Other Resources:

Colorado: Documenting Your Vote

Connecticut

Contact Information: o Connecticut Secretary of the State- Elections and Voting o Telephone number: (860)509-6100 o Toll free: (800)540-3764 o E-mail: lead@po.state.ct.us

Relevant Law:

o o o o

Conn. Gen. Stat. 9-236 - Activities prohibited in and near polling place Conn. Gen. Stat. 9-359 - Absentee ballots (voter cannot execute an absentee ballot "for the purpose of informing any other person how he votes") Conn. Gen. Stat. 9-364 - Influencing elector to refrain from voting Conn. Gen. Stat. 9-366 - Interference with electors in voting

Delaware

Contact Information: o Commissioner of Elections for the State of Delaware o Telephone number: (302) 739-4277 o E-mail: coe_vote@state.de.us

Relevant Law:

o o o

Del. Code tit. 15, 4933(b) - Persons permitted in the voting room Del. Code tit. 15, 5117 - Unauthorized entering of voting room; penalties Del. Code tit. 15 5161-5162 - Intimidation of election officers and electors

District of Columbia

Contact Information: o District of Columbia Board of Elections and Ethics o Telephone number: (202) 727-2525 o Toll free number: (866) DC-VOTES

Relevant Law:

o o o o o o

D.C. Code 1-1001.09 - Secrecy required D.C. Code 1-1001.12 - Interference with registration and voting Link to the D.C. Code D.C. Mun. Regs., tit. 3, ch. 7, 708 - Control of activity at Polling and Counting Places D.C. Mun. Regs., tit. 3, ch. 7, 711 - Voting Booth D.C. Mun. Regs., tit. 3, ch. 7 712 - Secrecy of the Ballot

Other Resources:

D.C. Board of Elections: Electioneering in D.C. Polling Places

Florida

Contact Information:

o o o o

Florida Division of Elections Telephone number: (850) 245-6200 E-mail: DivElections@dos.state.fl.us Voter Assistance Hotline: (866) 308-6739

Relevant Law:

o o o o o o

Fla. Stat. 102.031 - Maintenance of good order at polls; authorities; persons allowed in polling rooms and early voting areas; unlawful solicitation of voters (Note: 102.031(5) expressly prohibits photography inside a polling room) Fla. Stat. 97.021(25), (26) - Definitions Fla. Stat. 101.51 - Electors to occupy booth alone Fla. Stat. 104.0515 - Voting rights; deprivation of, or interference with, prohibited; penalty Fla. Stat. 104.0615 - Voter intimidation or suppression prohibited; criminal penalties CBS Broad., Inc. v. Cobb, 470 F. Supp.2d 1365 (S.D. Fla. 2006)

Other Resources:

o o

Florida: Documenting Your Vote Florida Department of State, Division of Elections: Polling Place Procedures Manual

Georgia

Contact Information: o Georgia Secretary of State- Elections Division o Telephone number: (404) 656-2871

Relevant Law:

o o o

Ga. Code 21-2-413 Conduct of voters, campaigners, and others at polling places generally (Note: 21-2-413(e) specifically prohibits the use of photographic or cellular devices while "within the enclosed space in a polling place.") Ga. Code 21-2-414 - Restrictions on campaign activities and public opinion polling within the vicinity of a polling place; cellular phone use prohibited in voting booth Ga. Code 21-2-568 - Entry into voting compartment or booth while another voting; interfering with elector; inducing elector to reveal or revealing elector's vote without their consent

Other Resources:

Georgia: Documenting Your Vote

o o

AJC.com: Can't 'Video Your Vote' in Georgia GPB News: Voting officials warn against 'Video Your Vote'

Hawaii

Contact Information: o Hawaii Office of Elections o Telephone number: (808) 453-VOTE o Neighbor Isle Toll-Free Number: (800) 442-VOTE o E-mail: elections@hawaii.gov

Relevant Law:

Haw. Rev. Stat. 19-6(6) - Loitering in voting area

Idaho

Contact Information: o Idaho Secretary of State- Elections Website o Telephone number: (208) 334-2852

Relevant Law:

o o o

Idaho Code 18-2305 - Intimidation during elections Idaho Code 18-2313 - Interference with election Idaho Code 34-1110 - Officers not to divulge information

Illinois

Contact Information: o Illinois State Board of Elections o Springfield Office: (217) 782-4141 o Chicago Office: (312) 814-6440 o E-mail: webmaster@elections.il.gov

Relevant Law:

o o o

10 Ill. Comp. Stat. 5/29-4 - Intimidation of voter 10 Ill. Comp. Stat. 5/29-9 - Unlawful observation of voting 10 Ill. Comp. Stat. 5/17-29 - 100-foot zone (scroll down)

Indiana

Contact Information: o Indiana Secretary of State- Elections Division o Telephone number: (317) 232-3939 o E-mail: elections@iec.state.in.us

Relevant Law:

o o o o o o o o o o o o

Ind. Code 3-5-2-10 - Definition of "chute" Ind. Code 3-6-10 - Rules governing "watchers for the media" Ind. Code 3-11-8-15 - Persons permitted at polls during elections Ind. Code 3-11-8-16 - Only voters permitted near entrance to the polls Ind. Code 3-11-8-18 - Voters not to converse with any person except precinct election board member Ind. Code 3-11-11-9 - Voting to be private; rights of voter in casting vote Ind. Code 3-11-11-10.5 - Voting booth occupancy; time limits; refusal to leave Ind. Code 3-11-11-16 - Disclosure of ballot; record Ind. Code 3-11-11-17 - Voter to leave polls after voting Ind. Code 3-14-3-4 - Obstruction of, interference with, or injury of voter or election officer Ind. Code 3-14-3-15 - Unauthorized entries at polls Ind. Code 3-14-3-21.5 - Voter intimidation

Iowa

Contact Information: o Iowa Secretary of State- Voter/Elections Website o Telephone number: (515) 281-0145

Relevant Law:

o o o o o

Iowa Code 49.88 - Limitations on persons in booth and time for voting (Note: Subsection 1. prohibits the "use of cameras, cellular telephones, pagers, or other electronic communications devices in the voting booth") Iowa Code 39A.4 - Election misconduct in the third degree Iowa Code 39A.5 - Election misconduct in the fourth degree Iowa Code 49.84 - Marking and return of ballot Link to Iowa Code (type in section 39A)

Kansas

Contact Information: o Kansas Secretary of State- Elections & Legislative Matters o Telephone number: (785) 296-4561

Relevant Law:

o o

Kan. Stat. 25-2413 - Disorderly election conduct Kan. Stat. 25-2422 - Unauthorized voting disclosure

Kentucky

Contact Information: o Kentucky Secretary of State- Elections Branch o Telephone number: (502) 564-3490 o Kentucky State Board of Elections o Telephone number: (502) 573-7100 o Kentucky Voter Information Website

Relevant Law:

o o

Ky. Rev. Stat. 117.235 - Persons permitted in voting room Ky. Rev. Stat. 117.236 - Prohibition against recording identity of voters

Other Resources:

o o

Associated Press: Video your vote for YouTube? Not in Kentucky Secretary of State Trey Grayson's video on Kentucky election law

Louisiana

Contact Information: o Louisiana Secretary of State- Elections Division o Telephone number: (225) 922-0900

Relevant Law:

o o

La. Rev. Stat. 18:1461(9) - Election offenses La. Rev. Stat. 18:427 - Poll Watchers

Other Resources:

Office of the Louisiana Attorney General, Opinion No. 94-455, Usage of video camera by poll watcher on election day at polling precinct

Maine

Contact Information: o Maine Secretary of State- Elections Division o Telephone number: (207) 624-7736 o E-mail: cec.elections@maine.gov

Relevant Law:

o o o o

Me. Rev. Stat. tit. 21-A, 671 - Voting procedure Me. Rev. Stat. tit. 21-A, 674 - Violations and penalties Me. Rev. Stat. tit. 21-A, 681 - Positions at polling places Me. Rev. Stat. tit. 21-A, 682 - Political activities

Maryland

Contact Information: o Maryland State Board of Elections o Telephone number: (410) 269-2840 o Toll-free number: (800) 222-8683 o E-mail: info@elections.state.md.us

County Boards of Elections

Relevant Law:

o o o o

Md. Code, Elec. Law 9-217 - Prohibited practices Md. Code, Elec. Law 10-303 - Authority and duties of election judges Md. Code, Election Law 10-308 - Individuals who have access to the voting room Md. Code, Election Law 16-204 - Prohibition on hindering or impeding the conduct of official electoral activities

Massachusetts

Contact Information: o Massachusetts Election Division o Telephone number: (617) 727-2828 o Toll-free number: (800) 462-VOTE o E-mail: elections@sec.state.ma.us

Relevant Law:

o o o

Mass. Gen. Laws ch. 56, 25 - Disclosing marked ballot Mass. Gen. Laws ch. 56, 29 - Unlawful interference with voter Mass. Gen. Laws ch. 54, 71 - Presiding officers; powers and duties

Other Resources:

Massachusetts: Documenting Your Vote

Michigan

Contact Information: o Michigan Secretary of State- Elections o Michigan Voter Information Center o Telephone number: (517) 373-2540

Relevant Law:

o o

Mich. Comp. Laws 168.738(2) - Voting; ballots; folding; deposit in ballot box; rejection for exposure Mich. Comp. Laws 168.678 - Board of election inspectors; authority

Other Resources:

o o o

Michigan Secretary of State: Land reminds voters of camera ban Michigan Secretary of State: Election Inspector Training Manual February 2008(see page 52 for prohibition on voter use of video cameras, cameras, recording equipment, and cell phones in the polls) Michigan: Documenting Your Vote

Minnesota

Contact Information: o Minnesota Secretary of State- Election Center o Telephone number: (651) 215-1440 o Toll-free number: (877) 600-VOTE o E-mail: elections.dept@state.mn.us

Relevant Law:

o o o

Minn. Stat. 204C.06 - Conduct in and near polling places Minn. Stat. 204C.17 - Voting; Secrecy Minn. Stat. 204C.18 -Ballots; Secrecy

Other Resources:

Minnesota: Documenting Your Vote

Mississippi

Contact Information: o Mississippi Secretary of State- Elections Division o Elections Call Center: (601) 576-2550 o Elections Hotline: (800) 829-6786

Relevant Law:

o o o o o

Miss. Code 23-15-241 - Election bailiff to keep peace Miss. Code 23-15-245 - Duties of election bailiff; polls to be open and clear Miss. Code 23-15-551 - Marking and casting ballot; who may be present in polling room Miss. Code 23-15-555 - Penalty for unlawfully showing marked ballot Link to Mississippi Code (click on "Title 23, Elections," then "Chapter 15, Mississippi Election Code"; the provisions noted are in Articles 7 and 17)

Other Resources:

Office of the Attorney General of the State of Mississippi, Opinion No. 2008-00136, News Media in Polling Places

Missouri

Contact Information: o Missouri Secretary of State- Elections Division o Telephone number: (573) 751-2301 o Toll-free number: (800) NOW-VOTE o E-mail: elections@sos.mo.gov o Missouri Voting Rights Center

Relevant Law:

o o o

Mo. Rev. Stat. 115.409 - Who may be admitted to polling place Mo. Rev. Stat. 115.635 - Class three election offenses Mo. Rev. Stat. 115.637 - Class four election offenses (Note: Subsection (14) prohibits a voter from "allowing his ballot to be seen by any person with the intent of letting it be known how he is about to vote or has voted")

Montana

Contact Information: o Montana Secretary of State- Elections o Telephone number: (406) 444-4732 o Toll-Free Voter Hotline: (888) 884-VOTE o E-mail: soselections@mt.gov

Relevant Law:

o o o

Montana Code 13-13-122 - Preventing obstructions Montana Code 13-35-201 - Electors and ballots Montana Code 13-35-211(3) - Electioneering -- soliciting information from electors

Nebraska

Contact Information: o Nebraska Secretary of State- Elections o Telephone number:(402) 471-2555 o E-mail: ElectionsAssistant@sos.ne.gov

Relevant Law:

o o o o

Neb. Rev. Stat. 32-910 - Polling places; obstructions prohibited; restrictions on access Neb. Rev. Stat. 32-1523 - Obstruction of polling place or building; penalty Neb. Rev. Stat. 32-1525 - Polling and interviews; prohibited acts; penalty Neb. Rev. Stat. 32-1527(4) - Voting of ballots; prohibited acts; penalty

Nevada

Contact Information: o Nevada Secretary of State- Election Center o Telephone number: (775) 684-5705 o E-mail: nvelect@sos.nv.gov

Relevant Law:

o o o o

Nev. Rev. Stat. 293.274 - Members of general public allowed to observe conduct of voting at polling place; photographing or otherwise recording conduct of voting by members of general public prohibited Nev. Rev. Stat. 293.730 - Interfering with conduct of election; unauthorized delivery, receipt, identification, display or removal of ballot Nev. Rev. Stat. 293.740 - Soliciting votes and electioneering inside polling place or within certain distance from polling place prohibited; penalty Nev. Admin. Code 293.245 - Observation of conduct of voting at polling place

New Hampshire

Contact Information: o New Hampshire Secretary of State- Election Division o Telephone number: (603) 271-3242 o E-mail: Elections@sos.state.nh.us

Relevant Law: o N.H. Rev. Stat. 659:16 - Number of voters allowed within guardrail o N.H. Rev. Stat. 659:21 - Admittance within guardrail o N.H. Rev. Stat. 659:25 - Time allowed for voting o N.H. Rev. Stat. 659:26 - Voters not readmitted o N.H. Rev. Stat 659:35 - Showing or specially marking ballot o N.H. Rev. Stat. 659:37 - Interfering with voter o N.H. Rev. Stat. 659:40 - Bribing; intimidation; suppression

New Jersey

Contact Information: o New Jersey Division of Elections o Telephone number: (609) 292-3760 o Toll-Free Hotline: (877) NJVOTER o E-mail: njelections@lps.state.nj.us

Relevant Law:

o o o o o o

N.J. Stat. 19:15-8 - Persons allowed in polling places N.J. Stat. 19:15-26 - Ballots marked secretly in booth; no more than one voter in booth at a time; violation disorderly persons offense N.J. Stat. 19:32-48 - Removal of persons from polling places N.J. Stat. 19:34-6 - Prohibited actions in polling place on election day N.J. Stat. 19:34-7 - Violation of ballot regulations Link to New Jersey Statutes (choose Title 19, Elections)

Other Resources:

Attorney General's Directive On Exit Polling by Media and Non-Partisan Public Interest Groups

New Mexico

Contact Information: o New Mexico Secretary of State- Elections o Telephone number: (505) 827-3600 o Toll-free number: (800) 477-3632 o E-mail: Elections@state.nm.us

Relevant Law:

o o o o

N.M. Stat. 1-12-4 - Conduct of elections; maintenance of order N.M. Stat. 1-20-16 - Electioneering too close to the polling place N.M. Stat. 1-20-17 - Obstructing the polling place N.M. Stat. 1-20-20 - Disturbing the polling place

New York

Contact Information: o New York State Board of Elections o Telephone number: (518) 473-5086 and (518) 474-6220 o Toll-free number: (800) 367-8683

Relevant Law:

N.Y. Elec. Law 17-130 - Misdemeanor in relation to elections

North Carolina

Contact Information: o North Carolina State Board of Elections o Telephone number: (919) 733-7173 o Toll-free number: (866) 522-4723 o E-mail: elections.sboe@ncmail.net

Relevant Law:

o o o

N.C. Gen. Stat. 163-166.3 - Limited access to the voting enclosure (includes prohibitions on photographing/videoing other voters and own ballot) N.C. Gen. Stat. 163-166.4 - Limitation on activity in the voting place and in a buffer zone around it N.C. Gen. Stat. 163-165(9) - Definition of "voting enclosure"

Other Resources:

o o

North Carolina State Board of Elections, Press Release on Media Photography and Filming at Precinct and One-Stop Voting Sites North Carolina: Documenting Your Vote

North Dakota

Contact Information: o North Dakota Secretary of State- Elections and Voting o Telephone number: (701)328-4146 o Toll-free number: (800) 352-0867 ext. 8-4146 o E-mail: soselect@nd.gov

Relevant Law:

N.D. Code 16.1-10-06 - Electioneering on election day - Penalty

N.D. Code 16.1-10-06.2 - Sale or distribution at polling place

Ohio

Contact Information: o Ohio Secretary of State - Elections o Elections Division: (614) 466-2585 o Voting Rights Institute: (877) 767-6446

Relevant Law:

o o o o o

Ohio Rev. Code 3501.30 - Polling place supplies Ohio Rev. Code 3501.33 - Authority of precinct officials Ohio Rev. Code 3501.35 - No loitering or congregating near polling places Ohio Rev. Code 3599.20 - Prohibitions concerning ballots generally Ohio Rev. Code 3599.24(5) - Interference with conduct of election

Other Resources:

o o

Advisory 2008-03 - Polling Place Conduct; Media Access to Polling Locations; and Exit Polling Within 100 feet of a Polling Place Ohio: Documenting Your Vote

Oklahoma

Contact Information: o Oklahoma State Election Board o Telephone number: (405) 521-2391 o E-mail: info@elections.ok.gov

Relevant Law:

o o o o o o o o

Okla. Stat. 26-7-108 - Only voters and election officials permitted near ballot box Okla. Stat. 26-7-108.1 - Exit poll - Notice Okla. Stat. 26-7-108.3 - Pollster restrictions - Violation deemed misdemeanor Okla. Stat. 26-7-108.4 - Pollsters - Written polling materials - Restrictions on oral interviews and recordings Okla. Stat. 26-7-108.5 - Exit polls - Restrictions - Voluntariness Okla. Stat. 26-7-109 - Disclosure of vote - Prohibition Okla. Stat. 26-7-112 - Persons allowed in enclosure - News reporter or photographer Link to Oklahoma Statutes, Title 26 Elections

Other Resources:

Oklahoma State Election Board, Notice to Inspectors: Cameras in the Polling Place

Oregon

Contact Information: o Oregon Secretary of State- Elections Division o Telephone number: (503) 986-1518 o Toll-free number: (866) 735-2900 o E-mail: elections.sos@state.or.us

Relevant Law:

Or. Rev. Stat. 260.695 - Prohibitions relating to voting

Pennsylvania

Contact Information: o votesPA: Online Voting Information and Resource Center o Toll-free number: (877) 868-3772 o E-mail: ST-HAVA@state.pa.us o County Contact Persons Elections/Voter Registration

Relevant Law:

o o o o o o o o

Pa. Const. Art. VII, 4 - Secrecy in voting 25 Pa. Stat. 2642 - Powers and duties of county boards 25 Pa. Stat. 3054 - Admission of electors within enclosed space 25 Pa. Stat. 3057 - Time allowed elector in voting booth or voting machine compartment 25 Pa. Stat. 3060 - Regulations in f0rce at polling places 25 Pa. Stat. 3530 - Unlawful assistance in voting 25 Pa. Stat. 3547 - Prohibiting duress and intimidation of voters and interference with the free exercise of the elective franchise Link to Pennsylvania Statutes

Other Resources:

Pennsylvania: Documenting Your Vote

Rhode Island

Contact Information: o Rhode Island Board of Elections o Telephone number: (401) 222-2345

Relevant Law:

o o o

R.I. Code 17-19-21 - Arrangement of polling places; election officials; police officers R.I. Code 17-19-23 - Wardens and supervisors; powers and duties R.I. Code 17-23-15 - Polling or surveying of voter opinion

South Carolina

Contact Information: o South Carolina State Election Commission o Telephone number: (803) 734-9060 o E-mail: elections@elections.sc.gov

Relevant Law:

o o o

S.C. Code 7-13-130 - Preservation of right to vote and secrecy of ballot S.C. Code 7-13-740 - Only one voter in booth at a time; speaking to voter prohibited S.C. Code 7-13-760 - Time when voter must leave booth and voting place; voter must be alone in booth and must not talk while voting

Other Resources:

South Carolina: Documenting Your Vote

South Dakota

Contact Information: o South Dakota Secretary of State- Elections & Voter Registration o Telephone number: (605) 773-3537 o E-mail: elections@state.sd.us

Relevant Law:

o o o o o

S.D. Codified Laws 12-18-3 - Electioneering, offices, distracting communications devices, and polling prohibited near polling place--Violation as misdemeanor S.D. Codified Laws 12-18-9.1 - Poll watchers and waiting voters not to see into booths--Interference with official actions--Violation as misdemeanor S.D. Codified Laws 12-18-27 - Unlawful to display Ballot S.D. Codified Laws 12-26-21 - Disobedience of precinct superintendent or precinct deputy as misdemeanor S.D. Codified Laws 12-26-22 - Disturbance of election proceedings as misdemeanor

Other Resources:

South Dakota Election Day Precinct Manual 2008

Tennessee

Contact Information: o Tennessee Department of State- Division of Elections o Telephone number: (615) 741-7956 o Toll-free number: (877) 850-4959 o E-mail: tennessee.elections@state.tn.us

Relevant Law:

o o o

Tenn. Code. 2-7-103 - Persons allowed in polling place Tenn. Code. 2-7-118 - Time limit for voting; removal of voter Link to Tennessee Code

Texas

Contact Information: o Texas Secretary of State- Elections Division o Telephone number: (512) 463-5650 o Toll-free number: (800) 252-VOTE o E-mail: elections@sos.state.tx.us

Relevant Law:

o o o o o o

Texas Elec. Code 61.001 - Bystanders excluded Texas Elec. Code 61.003 - Electioneering and loitering near polling place prohibited Texas Elec. Code 61.006 - Unlawfully divulging vote Texas Elec. Code 61.008 - Unlawfully influencing voter Texas Elec. Code 61.014 - Use of certain devices Link to Texas Statutes

Other Resources:

Texas: Documenting Your Vote

Utah

Contact Information: o State of Utah Elections Office o Telephone number: (801) 538-1041 o Toll-free number: (800) 995-VOTE o E-mail: gherbert@utah.gov

Relevant Law:

o o o

Utah Code 20A-3-105(7), (9) -Marking and depositing ballots Utah Code 20A-3-501 - Polling place; prohibited activities Utah Code 20A-3-504 - Violations -- Penalties

Vermont

Contact Information: o Vermont Secretary of State- Elections Division o Outside VT telephone number: (802) 828-2464 o In-state telephone number: (800) 439-8683

Relevant Law:

o o

Vt. Stat. tit. 17, 2508 - Campaigning during polling hours; voter access Vt. Stat. tit. 17, 2566 -Marking ballots

Other Resources:

2008 Media Guide to Vermont Elections

Virginia

Contact Information: o Virginia State Board of Elections o Telephone number: (804) 864-8901 o Toll-free number: (800) 552-9745 o E-mail: info@sbe.virginia.gov

Relevant Law:

o o o

Va. Code 24.2-604 - Prohibited activities at polls; notice of prohibited area; presence of representatives of parties or candidates; simulated elections; penalties; neutral observers; news media Va. Code 24.2-607 - Prohibited conduct; intimidation of voters; disturbance of election; how prevented; penalties Va. Code 24.2-1011 - Ballot not to be carried away

Other Resources:

Virginia: Documenting Your Vote - see especially page 3: "Pictures should not be taken of voters putting ballots into the ballot box (voters are guaranteed privacy of their votes)."

Washington

Contact Information: o Washington Secretary of State- Elections & Voting o Telephone number: (360) 902-4180 o Toll-free number: (800) 448-4881 o E-mail: elections@secstate.wa.gov

Relevant Law:

o o o o

Wash. Rev. Code 29A.44.010 - Interference with voter prohibited Wash. Rev. Code 29A.84.420 - Unauthorized examination of ballots, election materials - Revealing information Wash. Rev. Code 29A.84.510 -Acts prohibited in vicinity of polling place; prohibited practices as to ballots Wash. Rev. Code 29A.84.670 - Unlawful acts by voters

West Virginia

Contact Information: o West Virginia Government Elections Website o Telephone number: (304) 558-6000

o o

Toll-free number: (866) SOS-VOTE E-mail: elections@wvsos.com

Relevant Law:

o o o o o

W. Va. Code 3-1-37 - Restrictions on presence and conduct at polls W. Va. Code 3-1-38 - Disorder at polls; procedure W. Va. Code 3-4a-23 - Persons prohibited at voting booth; photograph prohibited W. Va. Code 3-9-9 - Other unlawful acts at polling places; penalties W. Va. Code 3-9-10 - Disorder at polls; prevention

Wisconsin

Contact Information: o Wisconsin Government Accountability Board- Elections Division o Telephone number: (608) 266-8005 o E-mail: gab@wi.gov

Relevant Law:

o o o o

Wisc. Stat. 5.35(4)-(5) - Polling place requirements Wisc. Stat. 12.13(1)(f) - Election fraud; showing marked ballot Link to Wisconsin Statutes, Chapter 5 - Elections Link to Wisconsin Statutes, Chapter 12 - Prohibited Election Practices

Wyoming

Contact Information: o Wyoming Secretary of State- Election Division o Telephone number: (307) 777-7186 o E-mail: elections@state.wy.us

Relevant Law:

o o o o o

Wyo. Stat. 22-13-103 - Preservation of order; space around voting booths and machines Wyo. Stat. 22-13-106 - Marking and depositing of paper ballots Wyo. Stat. 22-13-113 - Persons permitted in voting booth; time limit Wyo. Stat. 22-26-112, 114 - Prohibiting creation of disturbance at polling place Link to Wyoming Statutes, Title 22 - Elections

Arizona: Documenting Your Vote Arkansas: Documenting Your Vote California: Documenting Your Vote Colorado: Documenting Your Vote Florida: Documenting Your Vote Georgia: Documenting Your Vote Massachusetts: Documenting Your Vote Michigan: Documenting Your Vote Minnesota: Documenting Your Vote North Carolina: Documenting Your Vote

Arizona: Documenting Your Vote


We have not analyzed Arizona's laws regulating polling place activities yet, but we received the following comment from a site user that went through poll worker training in Arizona: In our pollworker training, we were told that it is illegal in AZ for any filming/photography to take place in the polling place while the polls are open. Photos can be taken after the polls close as long as the photographer does not interfere with the poll workers as they close out the polls. We were told to ask anyone with a camera to put it out of sight - either in a purse, pocket or return it to their car. If anyone does not wish to abide by our request, we are to call our Troubleshooter who will deal with the problem. For general information regarding legal issues associated with documenting your vote, see theDocumenting Your Vote section of this guide.

Ohio: Documenting Your Vote Pennsylvania: Documenting Your Vote South Carolina: Documenting Your Vote Texas: Documenting Your Vote Virginia: Documenting Your Vote

Arkansas: Documenting Your Vote


This page covers information specific to Arkansas. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. We have not analyzed in detail the Arkansas laws regulating polling place activities yet, but we received the following communication from a staff attorney in the Arkansas Secretary of State's office: No statute in Arkansas specifically prohibits cameras in polling places. The most relevant statute is 7-1-104(6) which provides: "It shall be unlawful for any person to prevent or to interfere with any qualified elector from voting at any election or to attempt to prevent or interfere with any qualified elector from voting at any election, provided that this subdivision (a)(6) shall not prohibit good faith challenges of ballots or voters according to law by candidates, authorized representatives of candidates, political parties, or ballot issues[.]" That said, many counties, at the discretion of the county's board of election commissioners, discourage presence in the polling place of people other than poll workers, electors, and other election officials due to the limited space and the realistic possibility of voters feeling less than comfortable casting their votes in front of a camera crew. It's the desire of the election officials that the polling places remain as neutral as possible so that people may vote without fear of scrutiny.

California: Documenting Your Vote


Note: This page covers information specific to California. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. The California law with most immediate relevance to citizen media creators who want to document the vote is California Elections Code 18541. This statute makes it a crime for anyone, within 100 feet of a polling place, to "photograph, videotape, or otherwise record a voter entering or exiting a polling place" with "the intent of dissuading another person from voting." The 100-foot zone is measured from the interior voting area itself, not from the exterior of the building; so most of it will likely be inside the polling place. Because section 18541 requires intent to dissuade someone from voting, it does not appear to ban outright the use of cameras and recording equipment in the 100-foot zone. But it does make such activity risky. Your intent is invisible. While you may not have any intention of dissuading anyone from voting, poll workers might see your conduct differently than you do. You could ultimately prevail before a court if the state chose to prosecute you, but you might still get kicked out of the polling place on Election Day and/or have to deal with some gigantic legal hassles. Other statutory provisions may also affect your ability to document your own voting experience inside the polling place. First, California Elections Code 14221 (scroll down to the relevant section) says that voters may only be in the voting area for certain specific purposes -"receiving, preparing, or depositing their ballots." By implication, this statute may make it unlawful to carry out other activities -- like filming or photographing -- in the voting area. Second, if you're interested in photographing or videoing your own marked ballot, two provision may impact your ability to do so. California Elections Code 14291 (scroll down) says that "[a]fter the ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents." It's not clear whether this could apply to posting a photo or video of your ballot online

after you've already cast it. In all likelihood, no one would bother to enforce the statute in that way. More pragmatically, California Elections Code 14224 (scroll down) limits your time in the voting booth to 10 minutes, so don't get carried away in there. Finally, you shouldn't try to interview anyone within 100 feet of the voting area, get too close to other voters with your camera (especially inside), or otherwise interfere with the voting process. California Elections Code 18502 makes it a crime to "in any manner interfere[] . . . with voters exercising their rights of voting at an election," and California Elections Code 18541, mentioned above, makes it a crime to "speak to a voter on the subject of marking his or her ballot" within 100 feet of the voting area with the intent to dissuade the voter from voting. Again, the intent requirement may take your newsgathering activity outside of section 18541, but it is certainly something to be aware of. Outside the 100-foot buffer zone, you're generally free to take photographs, film, and interview other voters (with their permission). If you know of any other provisions of California law that might affect your ability to document the vote, or any cases interpreting California law on these issues, please let us know. If you want to contact California election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please use the contact information below:

California Secretary of State- Elections Website Toll free number: (800) 345-VOTE

Update: A reader provided us with a memo written by Cathy Mitchell, Chief of the Elections Division of the California Secretary of State's office, regarding the use of cameras and video equipment at polling places. The memo says that the Secretary of State "has historically taken the position that use of cameras or video equipment at polling places is prohibited, though there may be circumstances where election officials could permit such use." The memo gives an example: "[I]f a credentialed media organization wants to photograph or film a candidate voting at a polling place, this is something you may permit, provided you ensure such activity does not interfere with voting, is not intimidating to any voters or election workers, and that the privacy of voters is not compromised."

Colorado: Documenting Your Vote


This page covers information specific to Colorado. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Colorado has no statutory provision that expressly prohibits the use of photographic or video equipment inside a polling place while you are voting. But, according to a lawyer in theColorado Secretary of State's Office, "many county clerks have specific prohibitions against video or photography equipment in the polling place." Therefore, your safest bet is to contact your county clerk to find out if there is a complete ban on photography and videography in your polling location. Even if your county allows you to use photographic or video equipment inside of the polling place, make sure that your activities do not interfere with the voting process or intimidate voters. Colo. Rev. Stat. 1-13-711 prohibits interfering with another voter inside the immediate voting area, and Colo. Rev. Stat. 1-13-713 prohibits voter intimidation, including impeding, preventing, or interfering with the voting process. Additionally, Colo. Rev. Stat. 1-7-115 requires that voters "shall leave the immediate voting area as soon as voting is complete." It is unclear whether this statute is referring to the voting booth or the entire polling place. (Here is a link to the Colorado Revised Statutes.) Beyond that, Colo. Rev. Stat. 1-13-712(1) impacts your ability to photograph or video your own marked ballot and upload the image to the Internet. It states: "no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents." The statute does not prohibit the act of photographing or videoing your marked ballot itself, but it does prohibit showing that image to anyone else. As our contact in the Secretary of State's Office wrote in an email to us: "There is no state statute that prohibits videoing or photographing one's ballot. However, it is illegal for one to then disclose how one has voted." So, if your county allows photography/videography, you could record your own vote for your own purposes, but you would violate the law if you uploaded the video to YouTube or showed it to your friends. No state statute addresses the use of photographic or video equipment outside of Colorado polling places, but Colo. Rev. Stat. 1-5-105(1) bans any "election-related activity . . . within one hundred feet of any building in which a polling place is located." Although it is unlikely that "election-related activity" encompasses interviews for the purpose of newsgathering, we suggest that you stay at least 100 feet away from the building if you want to interview voters about the election. Finally, 8 Colo. Code Regs. 1505-1, Rule 8.12 allows "media observers" to observe and photograph "early voting, election day voting and the processing and counting of provisional, mail and mail-in ballots." However, a media observer must have "valid and current media credentials" and must have a certificate of appointment. Therefore, this privilege is likely not available to non-traditional journalists who do not work for media organizations.

Florida: Documenting Your Vote


Note: This page covers information specific to Florida. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Section 102.031 of the Florida Statutes is the most important provision regulating polling place activities. First, section 102.031(5) prohibits "photography . . . in the polling room." The "polling room" means "the actual room in which ballots are cast on election day and during early voting." Fla. Stat. 97.021(26). While the law does not expressly mention video, it is a good bet that a court would interpret the statute to prohibit video inside the polling room as well. In light of this statute, you should not attempt to use a camera or recording equipment inside the polling room in Florida. If lines gather inside the polling place building but outside the polling room itself, or if poll workers check in voters outside the polling room, then you may be able to use a camera in these locations, but caution is advised. Second, section 102.031(4)(a) states that no person may "solicit" voters inside or within 100 feet of the entrance to a polling place. "Solicit" means "seeking or attempting to seek any vote, fact, opinion, or contribution." Fla. Stat. 102.031(4)(b). This provision prohibits interviewing other voters inside the polling place or outside as they enter or leave, if you are standing within 100 feet of the entrance. In addition to this, section 101.51 states that a voter may not speak with anyone when in the booth or compartment to cast his or her vote, and that the voter must leave the polling room immediately after voting. In 2006, a federal district court ruled section 102.031(4) unconstitutional to the extent its ban on solicitation stops media organizations from engaging in exit polling within 100 feet of the entrance. See CBS Broad., Inc. v. Cobb, 470 F. Supp.2d 1365 (S.D. Fla. 2006). It is not clear how this ruling affects non-traditional media and activities other than exit polling. The Florida Department of State's Polling Place Procedures Manual states that "the media or others who are allowed to conduct exit-polling activities" are not subject to the 100-foot restriction on solicitation, but may only speak with voters after they have voted. The CMLP has been unable to determine who exactly qualifies as the "media" or how one gets to be "allowed" to conduct exit-polling activities. I suggest that you contact the Florida Division of Elections or your local board of elections for more information. As always, let us know what you find out! Third, section 102.031(3) limits access to the polling room to poll workers, certain election officials, and voters (along with persons in the care of a voter, and persons caring for a voter). This means that members of the media, whether traditional or non-traditional, cannot enter the polling room except to vote. If you are not inside or within 100 feet of the polling place, Florida law places fewer restrictions on your activities. You generally may take photographs and video and interview other voters (with permission). Despite this greater degree of freedom, you should take care not to make voters feel uncomfortable or interfere with the voting process in any way. Section 104.0515makes it a crime to "intimidate . . . any other person for the purpose of interfering with the right of such other person to vote or not to vote as that person may choose." Similarly, section 104.0615 makes it a crime to "use . . . intimidation or any tactic of coercion or intimidation to induce or compel an individual" to carry out various voting-related activities. While you may not view your newsgathering activities as intimidating, poll workers and other voters might take a different view. This probably is less of a concern outisde the 100-foot zone established insection 102.031(4), but it is something to be aware of nonetheless. If you know of any other provisions of Florida law that might affect your ability to document the vote, or any cases interpreting Florida law on these issues, please let us know. If you want to contact Florida election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please use the contact information below:

Florida Division of Elections Website Telephone number: (850) 245-6200 E-mail: DivElections@dos.state.fl.us Voter Assistance Hotline: (866) 308-6739

Georgia: Documenting Your Vote


Georgia is one of the states that explicitly prohibits photography inside polling places. Section 21-2-413(e) of the Georgia Code states : No elector shall use photographic or other electronic monitoring or recording devices or cellular telephones while such elector is within the enclosed space in a polling place. This prohibition applies to the entire polling place, not just the voting booth. Therefore, Georgia voters should not attempt to use a video camera, still camera, or other recording device inside a polling place. Additionally, section 21-2-414(e) specifically bans the use of a cell phone or other communications device once a person has been issued a ballot or is inside the voting booth. Taken together, these two sections indicate that you would be violating the law if you attempted to record your own vote inside the voting both.

Some media organizations in Georgia have specifically addressed the Video Your Vote project. The Atlanta Journal-Constitution recently wrote an article that you may find helpful. Additionally, Georgia Public Broadcasting has an insightful article that includes an interview with an election official in Georgia. According to that official, signs warning voters about the ban on photography/videography will be posted at polling places, and poll workers are aware of the prohibition. Outside of the polling place, Georgia law does not expressly prohibit photography. But, section 21-2-414(a) prohibits anyone from conducting "any exit poll or public opinion poll with voters . . . within 150 feet of the outer edge of any building within which a polling place is established." So, if you are planning to interview voters, make sure that you are more than 150 feet away from the building. If you plan on interviewing other voters outside, you should also be aware of section 21-2-568(5). This provision makes it a misdemeanor to "[d]isclose[] to anyone how another elector voted, except when required to do so in any legal proceeding." Interpreted literally, this statute could make it illegal to ask a voter on camera how he or she voted or to otherwise publish online any information about how a specific voter voted, even if the voter tells you this information willingly and gives you permission to post the video or publish the information online. It is not clear whether Georgia election officials take the position that section 21-2-568(5) prohibits this conduct, but this is not outside the realm of possibility given how seriously they take ballot secrecy.

Massachusetts: Documenting Your Vote


This page covers information specific to Massachusetts. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Massachusetts has no statutory provision that specifically prohibits the use of photographic or video equipment inside a polling place while you are voting. There is, however, a Massachusetts statute that makes it a crime to "hinder[], delay[] or interfere[] with . . . a voter while on his way to [an] election, while within the guard rail, while marking his ballot or while voting or attempting to vote." Mass Gen. Laws ch. 56, 29. If your photographing or videotaping obstructs the voting process or interferes with other voters, you could run into problems with this provision. But, if your activity is not disruptive, it appears to be legal (from the perspective of state law) for you to take photographs or record video inside a Massachusetts polling place. Local officials, however, may have the authority to prohibit or discourage photography and videography inside polling places. For instance, the Town Clerk of Stoneham, Massachusetts told us that he intends to post signs discouraging the use of cameras inside the polls. Local control over this issue may explain why many Massachusetts voters were permitted to take photographs inside polling places during the 2008 primaries, while others were not. Forty-eight photos taken inside of Massachusetts polling places were posted on the New York Times Polling Place Project at the time of writing (no longer available). On the other hand, one poster to the project reported that she was not allowed to use a camera in her polling place in Cambridge. Different towns, and even different polling locations within those towns, could have different policies. You should consult with local election officials at your town clerks office to learn what they will allow in terms of photography and videography inside the polls. Beyond that, Mass Gen. Laws ch. 56, 25 potentially affects your ability to photograph or video your own marked ballot and upload the image to the Internet. In relevant part, the statutes says: Whoever, at a primary, caucus or election, . . . allows the marking of his ballot to be seen by any person for any purpose not authorized by law . . . shall be punished by imprisonment for not more than six months or by a fine of not more than one hundred dollars. Because of the limiting clause -- "at a primary, caucus or election" -- the statute may not apply to recording an image of one's marked ballot and later publicly displaying it on the Internet. We are not sure how election authorities will interpret this statute. In any event, it seems relatively clear that posting an image of your own unmarked ballot is probably lawful (putting aside local rules/policies against any photography whatsoever). Again, the New York Times Polling Place Project is instructive. We found several photos of unmarked ballots submitted by Massachusetts voters (no longer available). Finally, Massachusetts law does not specifically restrict your ability to take photographs or shoot video outside of polling places. Nevertheless, you should make sure not to film anyone surreptitiously because Massachusetts has a strict wiretapping statute that authorities have interpreted as covering secret video recordings that capture sound, even those made in public locations. Getting express permission from anyone you want to interview or film is a good way of avoiding any problem.

Michigan: Documenting Your Vote


This page covers information specific to Michigan. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Michigan Secretary of State Terri Lynn Land issued a press release on October 29, 2008 warning voters that Michigan law prohibits the use of video cameras, still cameras, and other recording devices inside Michigan polling places on Election Day.

The release mentioned the Video Your Vote project by name, saying that the project "urging [voters] to record their Election Day experiences cannot be conducted in Michigan polling places." Land acknowledged that YouTube and PBS have cautioned voters that some states like Michigan prohibit the use of recording devices in the polls (for example, see our video), but expressed concern that "not everyone will be aware of the warning." Michigan has no statute expressly prohibiting the use of cameras and recording equipment inside polling places, but the Secretary of State has taken the position since at least 2006 that voters may not use video and still cameras, including cell phones, inside the polls. (A February 2008 election inspector training manual takes the same position.) Credentialed members of the news media are excused from the ban, although some restrictions apply to their conduct as well. The stated reasons for the camera ban are "to protect voters who may feel intimidated in the polling place by the presence of a camera" and to deter "those who may try to sell their vote." The press release also indicates that Michigan law prohibits displaying one's own marked ballot, relying on Mich. Comp. Laws 168.738(2). The Secretary of State's recent comments are silent on what voters can do outside the polls. But, the press release quotes Karole White, president and chief executive officer of the Michigan Association of Broadcasters, as saying: "By keeping recording devices out of the polling place, you can still tell your story while respecting the law and the rights of other voters." Whether she meant to imply that voters are free to film outside the polls is not entirely clear, but no Michigan statute expressly prohibits such conduct. (This may be cold comfort, seeing as no statute expressly bans filming inside either.) Section 168.744 of the Michigan Compiled Laws prohibits campaigning and solicitation within 100 feet of the entrance to a polling place, but nothing in its language suggests a ban on photography or videography in this zone. How it impacts your ability to conduct interviews outside is another question. The February 2008 training manual mentioned above states that exit pollsters must remain at least 20 feet from the entrance to the building and refrain from approaching voters entering the building, which seems like a good rule of thumb for ordinary interviews as well. In the end, you'll have to assess the situation outside for yourself and use your common sense. It may be best to hang back beyond the 100-foot zone altogether.

Minnesota: Documenting Your Vote


Note: This page covers information specific to Minnesota. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Minnesota Statutes 204C.06 regulates the activities you can engage in at a Minnesota polling place. Subsection (1) says: An individual shall be allowed to go to and from the polling place for the purpose of voting without unlawful interference. No one except an election official or an individual who is waiting to register or to vote shall stand within 100 feet of the entrance to a polling place. The entrance to a polling place is the doorway or point of entry leading into the room or area where voting is occurring. If you're thinking of bringing a camera or video recorder to the polls in Minnesota to document your own voting experience or you're planning on interviewing fellow voters outside the polls, you should keep this statute in mind. Unless a recent legal challenge to the statute brought by large media organizations succeeds, you'll want to stay clear of the 100 foot zone except when you're in the process of voting or waiting in line to vote. So, if interviewing is your thing, definitely don't try to interview voters inside the polling place or right outside the polling place door. The statute also appears to prohibit taking photographs or shooting video within the 100 foot zone, if you're not in the process of voting (because it would require you to "stand" there). In addition, Section 204.06(2) of the Minnesota Statutes may prohibit you from using a cell phone camera or other recording device within the polling place itself, even if your purpose is just to document your own voting experience. It says: Except for these representatives, election judges, sergeants-at-arms, and challengers, an individual may remain inside the polling place during voting hours only while voting or registering to vote, providing proof of residence for an individual who is registering to vote, or assisting a disabled voter or a voter who is unable to read English. During voting hours no one except individuals receiving, marking, or depositing ballots shall approach within six feet of a voting booth, unless lawfully authorized to do so by an election judge. This section doesn't expressly prohibit the use of a camera or recording device, but it also doesn't include it in the permissible activities for which an individual may remain inside the polling place (voting, registering, providing proof of residence, or assisting a disabled voter), or those activities for which an individual may go near the voting booths (receiving, marking, or depositing ballots). We contacted the Minnesota Secretary of State's office regarding this question. A state official wrote the following in an email: While there is no state or federal law that strictly prohibits the use of cameras or other video equipment in the polling place to record an individual's own voting experience, the Office of the Minnesota Secretary of State strongly discourages voters from using cameras or video recorders in the polling place for the following reasons: Voters have a right to privacy-both as to how an individual has voted as well as whether or not an individual has voted. Either or both of these could be compromised by pictures or video. In addition, other voters' objections to being photographed could lead to disruptions

within the polling place. We are expecting record turnout this year, which means that there may be lines and polling places may be crowded. Voters have a right to take the time they need to vote, but should not take extra time to take pictures. In addition, sections 204C.17 and 204C.18 of the Minnesota Statutes prohibit voters from showing their marked ballot to others. According to the same official, taking photographs or video of your own marked ballot could violate this prohibition. If you want to contact Minnesota election officials directly to clarify how any or all of these provisions may impact your Election Day activities, please use the contact information below:

Minnesota Secretary of State- Election Center Website Telephone number: (651) 215-1440 Toll-free number: (877) 600-VOTE E-mail: elections.dept@state.mn.us

Update: On October 15, 2008, a federal district court in Minnesota issued a preliminary injunction prohibiting state officials from enforcing on November 4, 2008 the second sentence of Minn. Stat. 204C.06 against the plaintiff media companies who brought the lawsuit challenging the statute. Because the injunction only applies to the exit-polling activities of the media companies that filed suit, it is not clear how this affects the ability of non-affiliated journalists to interview voters or engage in other activities within the 100-foot zone.

North Carolina: Documenting Your Vote


Note: This page covers information specific to North Carolina. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide.

Although you wouldn't guess from photographs available online (here, here, here, and here), North Carolina law places heavy restrictions on photography and videography inside polling places on Election Day. Section 163-166.3(b) of the North Carolina General Statutes says that no person may "photograph, videotape, or otherwise record the image of any voter within the voting enclosure, except with the permission of both the voter and the chief judge of the precinct." Depending on the attitude of the chief poll worker at your precinct towards photography and videography, this amounts to a near-prohibition on using recording devices inside the "voting enclosure," which means "the room within the voting place that is used for voting." N.C. Gen. Stat. 163-165. Section 163-166.3(c) goes further. It expressly prohibits you from photographing, videoing, or otherwise recording "the image of a voted official ballot for any purpose not otherwise permitted under law." This means that you cannot photograph or video any one else's ballot, which is something to avoid in any state regardless of specific prohibition. But this also means you cannot film or photograph your own marked ballot. Note that that section 163-166.3 prohibits using cameras and video equipment inside polling places (absent permission under subsection (b)); it does not expressly prohibit bringing such devices (including cell phones) inside with you. Outside of the polling place, North Carolina law does not expressly prohibit using a camera or video recorder. Section 163-166.4 creates a buffer zone (no less than 25 and no greater than 50 feet) around the polling place, in which it is unlawful to "hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity." To be completely safe, you may want to take photographs or film outside the buffer zone, so as to avoid "harass[ing] others" or 'hinder[ing] access." However, the law probably permits you to photograph and film in this zone if your activity is not disruptive or intimidating. If you want to interview other voters, you should get their permission first and do your interview outside the buffer zone. In April 2008, the North Carolina State Board of Elections issued a press release presenting guidelines for poll workers and media representatives regarding the use of cameras and recording equipment at polling places. In a telephone conversation, a state official told us that these guidelines should apply equally to members of the public who wish to engage in newsgathering activities at the polls in North Carolina. The guidelines are:

Members of the media have a First Amendment right to report on matters of public interest, including elections. Members of the media, if they enter the buffer zone or voting enclosure, should identify themselves to the chief judge. Members of the media must conduct media polls and interviews outside the buffer zone. By law, the buffer zone is set at 50 feet from the entrances of the building in which the polling location is located. Precinct officials may state to media the number of persons who have voted, but no opinions should be given as to the effect of such voting numbers.

With the cooperation of election officials, members of the media may be briefly inside the voting enclosure to take a panoramic photograph or video of the voting place but are not permitted to use a zoom lens that could show the individual voter in the process of voting. Outside the buffer zone, the media is free to photograph or video in a non-disruptive manner. Members of the media should be positioned so that they will not interfere, obstruct, or disrupt the voting process. They are not allowed inside the enclosure unless they are there to vote or otherwise invited in by election officials. After the polls close the media and public are allowed inside the enclosure, but may not hinder the operations of the lection officials. Members of the media should be treated with respect. Election officials are to report problems with media personnel to the board of elections office.

It is hard to say whether poll workers actually will extend to ordinary citizens some of the privileges mentioned in the guidelines, like granting permission to take a panoramic photograph or video inside the polling place. In any event, anyone interested in taking photos, shooting video, or interviewing voters would do well to follow the prescriptive aspects of the guidelines.

Ohio: Documenting Your Vote


Note: This page covers information specific to Ohio. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Ohio law does not expressly prohibit using a camera or video recorder inside a polling place while you are voting. Section 3501.35(B) of the Ohio Revised Code states that no person other than an election official, employee, observer, or police officer may enter a polling place "except for the purpose of voting or assisting another person to vote." This could mean that any activity other than voting is prohibited, but the language does not compel this result. Photos on the New York Times Polling Place Project (here, here, and here) suggest that Ohio poll workers allowed voters to take photographs inside of polling places during the 2008 Primaries. Ohio law places stringent restrictions on other activities in and around the polling place. Sections 3501.30 and 3501.35 create a 100-foot buffer zone outside the polling place entrance, which also extends to within 10 feet of any voter in line, if the line extends beyond the 100-foot zone. Poll workers mark off the zone with small U.S. flags. In this area, no one may "loiter, congregate, or engage in any kind of election campaigning," "hinder or delay" a voter from reaching or leaving the polling place, or "[s]olicit or in any manner attempt to influence any elector in casting [their] vote," among other things. These broad provisions appear to prohibit talking with voters while they are entering or leaving the polling place or even standing inside the zone, except when waiting in line to vote. Mainstream media companies have twice successfully challenged these statutes in court on First Amendment grounds. In ABC, Inc. v. Blackwell, a federal district court in Ohio held that Ohio election officials could not enforce them against media representatives engaging in exit polling within 100 feet of a polling place. In Beacon Journal Publishing Co. v. Blackwell, the Sixth Circuit Court of Appeals held that Ohio officials could not enforce these provisions to bar media access to polling places for purposes of newsgathering. The court ordered the Secretary of State to permit media representatives "to have reasonable access to any polling place for the purpose of news-gathering and reporting so long as [they] do not interfere with poll workers and voters as voters exercise their right to vote." 389 F.3d 683, 685 (6th Cir. 2004). In a February 2008 advisory opinion sent to county boards of elections, the Secretary of State interpreted this judicial opinion as requiring election officials to grant "representatives of the media access to polling locations," apparently including inside of the buildings. Unfortunately, the Secretary of State has taken a restrictive view of who qualifies as a representative of the media. In the February 2008 advisory opinion, Jennifer Brunner advised poll workers to consider a number of factors in determining whether or not to grant access to someone for newsgathering purposes. First among these factors is "the credentials of the media representative, and whether the purported media representative is from an accredited media source as opposed to an internet writer." So, it looks like non-traditional journalists and especially online publishers may get second-class treatment come November. What does this mean? Nothing too severe -- just that the 100-foot loitering/hindering/soliciting prohibition may still apply to many journalists and ordinary citizens who don't fit into the mainstream media mould. If you don't qualify as a media representative, then you should not try to interview voters inside the 100-foot zone; poll workers would likely read this as "hinder[ing] or delay[ing]" voters. On the other hand, it's not clear whether taking photographs or shooting video in an unobtrusive way inside the 100-foot zone would violate the law. Photographing and filming doesn't "hinder or delay" voters in any meaningful sense, and it doesn't obviously fall into the categories of "solicit[ing]" voters or "loiter[ing], congregat[ing], or engag[ing] in any kind of election campaigning." Ohio Rev. Code 3501.30(A)(4), 3501.35(A)(1). In addition, regardless of your status, the law permits you to take photographs, shoot video, and interview voters (with permission) outside the 100-foot zone, as long as you are not on someone's private property. That said, anyone engaging in newsgathering activities at the polls -- whether "media" or not, whether inside or outside the polling place -should be careful not to interfere with, intimidate, or invade the privacy of other voters. Paralleling the language above, section 3599.24(5)makes it a crime to "loiter in or about a registration or polling place during registration or the casting and counting of ballots so as to hinder, delay, or interfere with the conduct of the registration or election." Section 3599.20 makes it a crime to "attempt to induce an elector to show how the elector marked the elector's ballot at an election." So, don't get too close to other voters inside the polling place if you're using a camera. (Incidentally, section 3599.20 also makes it a crime to "allow [your own] ballot to be seen by another" -- it is not clear whether this applies to photographing or videoing your own marked ballot and then posting it on the Internet.)

Finally, section 3501.33 gives election officials the authority to "enforce peace and good order" at the polls. It charges them with keeping the entrance "open and unobstructed" and preventing "any improper practices or attempts tending to obstruct, intimidate, or interfere with an elector in registering or voting." In support of this authority, they may order the arrest of anyone violating the laws discussed above. As a practical matter, it may be hard to challenge the discretion election officials have to decide what interferes with "peace and good order." Update: An Ohio election official informed us that election officials could prohibit the use of cameras and video equipment as a means of enforcing "peace and good order" under section 3501.33. In addition, a reader informed us that, on Election Day, an election volunteer told him to refrain from using a camera in the polling place. The volunteer said something about a new law prohibiting the use of cameras, but we have not been able to confirm the existence of any such law.

Pennsylvania: Documenting Your Vote


Note: This page covers information specific to Pennsylvania. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. While Pennsylvania has no state statute expressly prohibiting the use of cameras or video equipment inside or outside of polling places, an attorney in the Pennsylvania Department of State informs us that county boards of elections may adopt rules banning the use of cameras and video equipment inside those polling places under their authority. Anyone interested in using a camera or video recorder at the Pennsylvania polls on November 4 should therefore contact the local county board of elections to see if there is an outright prohibition in place. If you're interested in the legal basis for these local rules, section 2642(f) of Title 25 of Pennsylvania Statutes states that county boards of elections have the power to "make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of voting machine custodians, election officers, and electors." Putting aside First Amendment concerns that state officials probably do not share, a rule banning photography or filming isn't "inconsistent with law" and would arguably further county election officials' duty to "keep order in the voting room." 25 Pa. Stat. 3060(f). Such a rule might also act as a prophylactic against violations of other election laws, discussed below. Local control over this issue may explain why some Pennsylvania voters were permitted to take photographs inside polling places during the 2008 primaries, while others were not (photos from New York Times Polling Place Project no longer available). Besides local rules banning photography and videography, a number of state statutes also restrict activities at the polls and potentially limit your ability to use cameras and video equipment in and around polling places. As Albert Masland of the Pennsylvania Department of State put it in a recent email to YouTube, "While there is not a single [Pennsylvania] statute . . . that explicitly prohibits the use of electronic devices in the polling place, there is a web of statutes that makes it anything but clearly legal." First, Pennsylvania law strives to maintain secrecy in voting, a requirement enshrined in Article VII, section 4 of the Pennsylvania Constitution. Reflecting this concern for secrecy, section 3530 of Title 25 of the Pennsylvania Statutes restricts activities that may reveal the contents of a voter's ballot. This provision makes it a misdemeanor for a voter to "allow his ballot or the face of the voting machine voted by him to be seen by any person with apparent intention of letting it be known how he is about to vote." This language does not cover posting an image of one's own marked ballot on the Internet after voting, but it would likely cover streaming live video at the time of voting. Section 3530 also prohibits "endeavor[ing] to induce any elector before depositing his ballot to show how he marks or has marked his ballot." This makes it unlawful to photograph or film other voters in such a way that might reveal the contents of their ballots. Second, Pennsylvania law protects voters from intimidation and interference, and the relevant provisions could affect your ability to use cameras or video equipment inside a polling place. Section 3530, discussed above, also prohibits "interfer[ing] with any elector when inside the enclosed space or when marking his ballot, or preparing the voting machine for voting." In addition, section 3547 makes it a crime to "practice intimidation or coercion" to compel someone to vote or refrain from voting, or to "impede[], prevent[], or otherwise interfere[] with the free exercise of the elective franchise by any voter." You may not view your use of a camera or video recorder as intimidating, but other voters and election officials may well view it that way, and their discomfort is likely to be more acute if you film inside. Third, Pennsylvania law strictly regulates activities in and around the polling place with a view towards maintaining order. For instance, section 3060(a) of Title 25 limits the number of voters inside the polling place to ten individuals, and section 3060(b) prohibits re-entry. Inside, section 3057 limits a voter's time in the voting compartment or booth to three minutes. Section 3060(d) prohibits anyone other than voters and certain officials from coming within 10 feet of the polling place. Unless you are in the process of voting, you should therefore steer clear of this area for any purpose. Outside this zone, the law permits you to film, take photographs, and interview other voters (with permission), as long as you are not on someone's private property, and subject to the prohibitions on voter intimidation and interference discussed above.

South Carolina: Documenting Your Vote


This page covers information specific to South Carolina. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. We have not analyzed South Carolina's laws regulating polling place activities yet, but we received the following communication from a South Carolina State Election Commission official:

There is no statute explicitly prohibiting cameras in the polling place. However, there are statutes dealing with voter intimidation, ballot secrecy, and keeping order in the polling place. We do instruct poll managers to ask voters not to use cameras, cell phones, PDAs, etc in the polling places for several reasons:

Out of courtesy to others. Voters may be distracted or annoyed by other voters using these items. To prevent intimidation. Voters can be intimidated by the use of a camera in a polling place. To protect the secrecy of the ballot.

Texas: Documenting Your Vote


This page covers information specific to Texas. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Texas is one of the states that expressly prohibit the use of all recording inside of polling places. Specifically, Tex. Elec. Code Ann. 61.014(b) bans the use of "any mechanical or electronic means of recording images or sound within 100 feet of a voting station." This includes video cameras, still cameras, and cell phones with recording capability. In addition, Tex. Elec. Code Ann. 61.014(a) prohibits the use of "any wireless communication device" in the same 100-foot zone, so even talking on your cell phone is not allowed. (Here is a link to the Texas Statutes online.) The prohibition on all photography and video extends inside the voting booth as well, so you should not attempt to record an image of your own ballot (whether marked or unmarked). A Texas election official told us that signs will be posted in polling places warning voters about the ban. The official also stated that, despite the ban on the use of recording equipment and wireless communication devices, voters will be allowed to enter a polling place carrying a cell phone, as long as they don't use it. If you are interested in interviewing other voters, you should do so outside of the polling place. Texas law makes it a crime for you to divulge information obtained in a polling place concerning another person's vote. See Tex. Elec. Code Ann. 61.006(a). Moreover, election officials are likely to view any attempt to conduct interviews inside as disruptive of the voting process. Outside, Texas law creates a 100-foot zone from the entrance of the building, in which loitering and electioneering are prohibited. See Tex. Elec. Code Ann. 61.003(a). It is not clear whether conducting interviews could be viewed as electioneering under the statute, but loitering could potentially encompass even standing in the 100-foot zone unless waiting to vote. This could make conducting interviews and filming or taking photographs in the 100-foot zone risky. If you are not inside or within 100 feet of the polling place, Texas law places fewer restrictions on your activities. You generally may take photographs and video and interview other voters (with permission). Despite this greater degree of freedom, you should take care not to make voters feel uncomfortable or interfere with the voting process in any way.

Texas: Documenting Your Vote


This page covers information specific to Texas. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. Texas is one of the states that expressly prohibit the use of all recording inside of polling places. Specifically, Tex. Elec. Code Ann. 61.014(b) bans the use of "any mechanical or electronic means of recording images or sound within 100 feet of a voting station." This includes video cameras, still cameras, and cell phones with recording capability. In addition, Tex. Elec. Code Ann. 61.014(a) prohibits the use of "any wireless communication device" in the same 100-foot zone, so even talking on your cell phone is not allowed. (Here is a link to the Texas Statutes online.) The prohibition on all photography and video extends inside the voting booth as well, so you should not attempt to record an image of your own ballot (whether marked or unmarked). A Texas election official told us that signs will be posted in polling places warning voters about the ban. The official also stated that, despite the ban on the use of recording equipment and wireless communication devices, voters will be allowed to enter a polling place carrying a cell phone, as long as they don't use it. If you are interested in interviewing other voters, you should do so outside of the polling place. Texas law makes it a crime for you to divulge information obtained in a polling place concerning another person's vote. See Tex. Elec. Code Ann. 61.006(a). Moreover, election officials are likely to view any attempt to conduct interviews inside as disruptive of the voting process. Outside, Texas law creates a 100-foot zone from the entrance of the building, in which loitering and electioneering are prohibited. See Tex. Elec. Code Ann. 61.003(a). It is not clear whether conducting interviews could be viewed as electioneering under the statute, but loitering

could potentially encompass even standing in the 100-foot zone unless waiting to vote. This could make conducting interviews and filming or taking photographs in the 100-foot zone risky. If you are not inside or within 100 feet of the polling place, Texas law places fewer restrictions on your activities. You generally may take photographs and video and interview other voters (with permission). Despite this greater degree of freedom, you should take care not to make voters feel uncomfortable or interfere with the voting process in any way.

Virginia: Documenting Your Vote


Note: This page covers information specific to Virginia. For general information regarding legal issues associated with documenting your vote, see the Documenting Your Vote section of this guide. If you're a Virginia voter thinking about documenting the big day, Virginia election law may affect your ability to use video or still photography in and around your polling place, as well as your ability to interview other voters at the polls. The following provisions may be important to you: Prohibited Zone Section 24.2-604(A) of the Virginia Code creates a 40-foot "Prohibited Area" around the entrance to the polling place. In this area, you may not (1) "loiter or congregate"; (2) engage in electioneering activities or otherwise attempt to influence any person in voting; or (3) "hinder or delay a qualified voter in entering or leaving a polling place." Given the restrictions on loitering and hindering or delaying a voter, you should not try to interview other voters in the Prohibited Area. Taking photographs and shooting video in this area does not appear to violate section 24.2-604, unless you hinder a voter or stand around long enough to be "loitering." Outside of this 40-foot zone, you are free to take photographs, shoot video, and interview voters (with permission), as long as you are not on someone's private property. Inside the Polling Room Section 24.2-604(D) regulates activities inside the polling room. It does not expressly prohibit the use of cameras or video recorders by voters. Instead, it prohibits activities similar to those outlawed in the Prohibited Area outside: (1) hindering or delaying a voter; (2) giving out campaign material; (3) soliciting or attempting to influence any person's vote; (4) hindering and delaying any officer of election; and (5) impeding the orderly conduct of the election. While the statute is not entirely clear, it looks like it permits you to take photographs or shoot video inside a Virginia polling place, so long as your conduct does not hinder or delay any other voter or otherwise interfere with the voting process. You should also avoid using your camera in any way that might reveal the contents of another voter's marked ballot. See Va. Code 24.2-607(making it a crime to "hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot"). Photos from the New York Times Polling Place Project (no longer available) suggest that at least some Virginia poll workers allowed voters to take photographs inside of polling places during the 2008 Primaries. Authority of County Officials to Prohibit Photography and/or Videography When we spoke with a state election official, she informed us that, while there is no state statute expressly prohibiting the use of cameras or video recorders inside the polling place,county election officials may adopt rules/policies banning or discouraging the use of this equipment inside of a polling place in order to avoid interference with other voters or the process of voting. Therefore, you should check with your local officials before Election Day if you're interested in using a camera inside the polls. Photographing or Videoing Your Own Marked Ballot Section 24.2-1011 of the Virginia Code prohibits carrying "an official ballot or copy thereof beyond or away from the voting booth." A state election official informed us that this provision prohibits a voter from photographing or videoing his or her own ballot. One of our readers points out how enforcing this prohibition against photographing or videoing one's own vote might further the policy underlying the statutory language -- "If voters can carry away proof of how they voted, that could be used for vote buying." Representatives of the News Media Section 24.2-604(J) gives "representatives of the news media" express permission to "visit and film or photograph inside the polling place for a reasonable and limited period of time while the polls are open." It imposes four restrictions, however: the media (1) must comply with the other restrictions found in section 24.2-604 (relating to prohibited activities in the 40-foot zone and inside the polling room); (2) must not film or photograph any person who specifically asks not to be filmed or photographed; (3) must not film or photograph a voter or a ballot in such a way that divulges how any individual voter is voting; and (4) must not film or photograph the voter list or any other voter record or material at the precinct in such a way that it divulges the name or other information concerning any individual voter. Subsection J also states that "[a]ny interviews with voters, candidates or other persons, live broadcasts, or taping of reporters' remarks, shall be conducted outside of the polling place and the prohibited area."

The statute does not define "representatives of the news media," and the CMLP has not been able to determine whether non-traditional journalists and bloggers fit into this category. We suggest that you contact the Virginia State Board of Elections or your local board of elections for more information. There might be some sort of credentialing process. Regardless of your status, any voter who brings a camera or recorder inside the polling place would do well to honor the restrictions imposed on the media. So, don't get too close to other voters or their ballots with your camera and always honor a request to stop photographing or filming. If you want to do interviews, take it outside the 40-foot zone.

Documenting the 2009 Presidential Inauguration

The 2009 Presidential Inauguration promises to be a historic series of events, and millions of people will converge on Washington D.C. to observe and participate in the festivities. Many attendees will want to document the events, whether for purposes of reporting on a blog or other website, or simply for purposes of creating a personal record of their own experiences. During the Inauguration, heightened security measures will be in place across Washington, D.C., particularly in the areas where official events are taking place. These security measures, as well as tickets, permits, and credentialing requirements, will affect where you can go, what you can bring with you, and what you can do to document the Inauguration. Your location and what events are taking place there will influence what legal and other limitations you are subject to. The following information will help you understand and comply with security measures and other requirements while documenting the Inauguration. Click here for a one-page, printable summary of this guide in pamphlet form (print double-sided).

Some Basics
The 2009 Presidential Inauguration is actually a series of events held over four days. The events start Sunday, January 18 with a "kick off" event at the Lincoln Memorial and conclude Wednesday, January 21 with a prayer service. A list of official events is available on thePresidential Inaugural Committee website, and a map of Washington, D.C. displaying where the various inaugural events will take place is available on The Washington Post's website. Most people consider the swearing-in ceremony to be the main event. The swearing-in will take place on Tuesday, January 20, on the steps of the Capitol Building. Limited seating is available directly in front of the Capitol Building steps, and tickets are required to watch the swearing-in from that location. Information about tickets to this event can be found at the website of the Joint Congressional Committee on Inaugural Ceremonies. The National Mall, which is located just west of the Capitol Building where the swearing-in will take place, will be open to the public during the ceremony, and large screens will be set up there to allow for viewing of the swearing-in. Tickets are not required to watch the ceremony from the National Mall. But, attendees will need to undergo security screenings and comply with various restrictions, discussed below. The Secret Service is the lead federal agency coordinating security for these events, but the D.C. Metropolitan Police, the U.S. Capitol Police and the National Park Service will all play active roles in maintaining security at the various inaugural events. More information about the security coordination, and what it will mean for attendees, is available on the Secret Service Presidential Inaugural webpage.

Where Can You Go?


While documenting the Inauguration, you can go anywhere the general public can go, but certain areas will be off-limits to you without tickets or official press credentials. Most inaugural events are open to the public, free of charge. Publicly accessible areas will be clearly marked, and security personnel will be present if you have questions about where you can and cannot go. Some events, like the ten official Inaugural Balls, will require a ticket to attend. The Presidential Inaugural Committee handles ticketing for official events other than the swearing-in ceremony. Please see their website for a schedule of events, and for more information about which events require tickets, and how tickets may be acquired.

"The Swearing-In": As noted above, tickets are needed to attend the January 20 swearing-in ceremony on the Capitol Building steps. Members of Congress and the Presidential Inaugural Committee are distributing these tickets. The most promising way to get a ticket is to contact your local member of Congress (keep in mind that the number of requests is likely to exceed the supply of tickets). For more information about tickets to the swearing-in ceremony, please visit the website of the Joint Congressional Committee on Inaugural Ceremonies. This Inauguration map shows the locations of the swearing-in events at the Capitol Building and National Mall, and displays where ticketed and non-ticketed attendees may go. Ticketed attendees of the Capitol Building swearing-in event must enter the Capitol Grounds through the entry point designated for their particular ticket section, as indicated on the Inauguration map. Security screening gates will open at 8:00 AM, music will begin at 9:00 AM, and the formal program will begin at 11:30 AM. Guests who have not made it to the screening points by 11:30 AM may not be permitted to enter. Security screening gates will also be in place at the National Mall swearing-in viewing event; it is likely that these gates will follow the same schedule. Inaugural Parade: You will need tickets to sit in the bleacher seats along the January 20 Inaugural Parade route, but you do not need tickets to watch the Parade from the sidewalk. A map of the Parade route indicates which streets will be blocked off during the event. The Presidential Inaugural Committee will be selling tickets for the seats. Youth Concert: You also need tickets to attend the youth concert at the Verizon Center on January 19. Tickets are free, and must be requested from the Presidential Inaugural Committee. All other official Inauguration events, apart from the Inaugural Balls, are open to the public free of charge. At both ticketed and non-ticketed events, press areas will be demarcated for members of the media who have applied for and been granted official press credentials. More information about press credentials is available at the website of the Joint Congressional Committee on Inaugural Ceremonies and the Inauguration Press Credentials page in this guide. Note that the deadlines to apply for press credentials have already passed.

What Can You Bring?


You should have no problem if you bring small, handheld equipment and carry it in a small bag (but not a backpack). At all inaugural events, attendees can bring still and video cameras. While we found nothing written that suggested any size limitations on cameras, officials told us in telephone conversations that small, handheld equipment is the safest bet, given that security screeners have discretion to prohibit any item "that may pose a threat to the security of the event." To the best of our knowledge, small microphones and other recording devices will be permitted as well. Tripods, backpacks and large bags (exceeding 8"x6"x4"), including camera bags, are not permitted. A non-exhaustive list of additional prohibited items is available at the website of the Joint Congressional Committee on Inaugural Ceremonies and the Secret Service Presidential Inaugural webpage. Please note that members of the media with official press credentials will be permitted to use some equipment, such as unipods, that members of the general public are not allowed to bring. See our Inauguration Press Credentials page for details.

What Can You Do to Document the Inauguration?


You can take still photographs, record video, and interview other Inauguration attendees at all inaugural events, provided that you comply with security regulations about what to bring (above) and don't create a disruption or otherwise interfere with security efforts. There is one caveat regarding "commercial filming" on the National Mall, which we discuss below. In the course of your filming and photographing, try not to get too close to other attendees with your equipment. This may help to avoid altercations, and it's also polite. In addition, before interviewing someone, get the person's permission. If possible, get written permission or record verbal permission on video. Explain to the individual what you intend to do with the video (such as uploading it to the Internet) and get their permission to use their name and likeness for that purpose. Commercial Filming on the National Mall The January 18 "kick off" event and the January 20 free public viewing of the swearing-in ceremony will take place on the National Mall, located just west of the Capitol Building. Because the National Mall is a national park, it is subject to the National Park Service's (NPS) permit requirements. NPS requires a permit (and fee) for "commercial filming" on national park land. It is unlikely, however, that taking photographs or recording video at these inaugural events qualify as "commercial filming," at least so long as you document the Inauguration for personal use or for purposes of reporting on the events.

Federal law, 16 U.S.C. 460l-6d, allows the NPS to require permits for "commercial filming" on national park land, including the National Mall. An NPS agent we spoke with took a fairly aggressive view of what constitutes "commercial filming," suggesting that permits are necessary for filming and photography "whenever you are getting paid for your images." A reasonable reading of the statute, however, does not support this understanding. The statute states that a permit for still photography is not required unless it takes place in a location where members of the public are not generally allowed, where additional administrative costs are likely, or where the photographer uses models or props that are not already located at the site. 16 U.S.C. 460l-6d(c). None of these exceptions are likely to apply to photographers documenting the inaugural events at the National Mall. Videographers are more likely than still photographers to be subject to the permit requirement, but only slightly more so. The statute does not define "commercial filming," but a Senate Report clarifies that "[p]ermits are not needed when filming for personal use, [or] for media and news events." S. Rep. No. 106-67, at 2 (1999). This means that most people interested in taking video footage of the inaugural events on the Mall are not subject to the permit requirement. The only individuals who are likely to be subject to the NPS's permit requirement are those interested in filming an advertisement, feature film, or documentary. If you fit into these categories, you can get more information about obtaining a permit at these National Park Service webpages (here, and here). An NPS representative told us over the telephone that it could take a couple weeks to process a permit application. However, the application forms indicate that applications should be submitted at least four days before filming begins.

What to Do In Case of Trouble?


The great majority of attendees interested in documenting the Inauguration will be content to observe and participate in the official events. For these individuals, any unpleasant confrontation with the police or other security personnel is unlikely. Others, however, may be interested in documenting demonstrations or other acts of dissent. These activities bring with them a greater risk of confrontation with the police. If you are interested in covering these types of activities, it is a good idea to avoid any appearance that you are participating in any protests or demonstrations, or engaging in disruptive behavior of any kind. To that end, the Student Press Law Center recommends that you avoid wearing insignia, carrying signs, or joining in chants with protest participants. You should also obey the orders of police and other security personnel. If you believe that these officials are acting unlawfully, try to document the names and titles of those involved, and the contact information of witnesses to the incident. If possible, photograph or videotape the misconduct. The Student Press Law Center also recommends that journalists bring at least $50 cash and a cell phone programmed with phone numbers of emergency personnel and colleagues or friends you can call in case you encounter any problems while at the Inauguration events. If you run into any trouble, being able to quickly contact outside help is important. If you know other people attending the Inauguration, plan to check in with each other periodically. Several organizations maintain hotlines that you may be able to call in case of trouble:

The Reporters Committee for Freedom of the Press - A nonprofit organization dedicated to providing free legal assistance to journalists - (800) 336-4243.

Student Press Law Center - A group that advocates for student free press rights and provides free information, advice and legal assistance to students and educators. SPLC has arranged for on-call assistance for any student journalist who is arrested or detained while covering the Inauguration - (703) 807-1904.

American Civil Liberties Union - A nonprofit organization dedicated to protecting First Amendment rights to freedom of speech and freedom of the press. The D.C. Chapter can be reached at (202) 457-0800.

Inauguration Press Credentials

Inauguration Press Credentials

Journalists who get official press credentials gain access to otherwise restricted areas and permission to use equipment not permitted to the general public, notably "unipods" (which are one-legged stands for holding a camera). Separate credentials are available for each event, and two organizations- the Senate Media Galleries and the Presidential Inaugural Committee - oversee the granting of these credentials depending on the event. The deadline for submitting applications has already passed. Some details about credentials for the different events are provided below. Individuals without official press credentials can still take photographs, record video, and otherwise document the inaugural events, albeit without access to special locations and use of a unipod. Swearing-in ceremony on the Capitol Building steps - January 20 - Ticketed event

The Senate Media Galleries handles all media credentialing for this event.

Deadline to apply: December 15. More information about these credentials is available on the website of the Joint Congressional Committee on Inaugural Ceremonies.

Who should apply: These credentials are geared towards professional journalists. Published criteria state that "persons engaged in other occupations, whose chief attention is not given to or more than one-half of their earned income is not derived from the gathering or reporting of news . . . shall not be entitled to admission."

What credentials entail: Members of the media who apply for and are granted media credentials are given access to the reserved press area at this event. They are also permitted to use equipment that is prohibited for members of the general public, such as unipods.

What it means if you do not have credentials: If you do not have official press credentials for this event, you may only attend if you have a ticket and comply with the security requirements. For information on these requirements, see the Documenting the 2009 Presidential Inauguration page in this guide.

All other official events - January 18 - 21, 2009

A list of events, and information about whether tickets are required to attend, is available from the Presidential Inaugural Committee, which handles media credentialing for these events.

Deadline to apply: December 22, late submissions not accepted.

Who should apply: The Presidential Inaugural Committee's website does not state who can or should apply for press credentials. We were told via telephone that only those who are associated with an established media company (e.g., CNN, Associated Press) should apply for press credentials.

What credentials entail: Members of the media who apply for and are granted media credentials are given access to the reserved press areas at these events. They are also permitted to use equipment that is prohibited for members of the general public, such as unipods.

What it means if you do not have credentials: If you do not have official press credentials for these events, you can still attend them because they are open to the public. You must, however, comply with the security requirements comply with the security requirements. For more information on these requirements, see theDocumenting the 2009 Presidential Inauguration page in this guide.

Protecting Sources and Source Material


The ability to protect your sources and newsgathering materials is often critical to your being able to gather information and inform the public. In the course of assembling information for an article, post, podcast, or other work, you may obtain information that, for a number of reasons, you do not wish to make available to the public. Ironically, confidentiality may be an essential part of bringing information to the public's attention because as a publisher, you may only be able to gather the information if you promise not to reveal the information's source. For example, reporting that involves the criticism of government and exposure of government and corporate wrongdoing often depends on the use of confidential sources. Fortunately, the law provides tools with which to protect the information you obtain. Absent some kind of legal protection, a journalist or other individual gathering information for dissemination to the public may be compelled to identify his or her sources and produce documents in court and other governmental proceedings. Journalists and other citizens reporting the news have been asserting their right to keep their sources and materials confidential for longer than the United States has been an independent nation. In 1734, for example, John Peter Zenger refused to give the names of his sources when he was charged with seditiously libeling British Governor William Cosby of the New York Colony. Zenger, who was later tried and acquitted, was jailed for a month due to his refusal to identify his sources. These legal protections are vital to the free flow of information in society. If reporters (and we use that term broadly here) are seen merely as an investigative arm of the government, individuals with information of great public concern may be afraid to share that information. As a result, the public may be deprived of information of critical importance to the proper functioning of our society and our democratic form of government. The following sections address the legal challenges facing online publishers in maintaining the confidentiality of sources and source material and discusses the federal and state laws that may protect them from forced disclosure of this information.

Promising Confidentiality to Your Sources: In this section, we explain when promises of confidentiality made to sources are legally binding.

Legal Challenges to Protecting Confidentiality and Source Material: In this section, we address the legal methods by which others can demand information and other newsgathering materials from you.

Legal Protections for Sources and Source Material: In this section, we outline the legal protections that you can use to protect your information from legal demands.

Practical Tips for Protecting Your Sources and Source Material: In this section, we provide practical tips on how to protect your sources and other materials collected in the course of newsgathering activities.

State Law: Legal Protections for Sources and Source Material: In this section, we provide state-specific information about protecting sources and source material for the fifteen most populous U.S. states and the District of Columbia.

Promising Confidentiality to Your Sources Legal Challenges to Protecting Confidentiality and Source Material Legal Protections for Sources and Source Material Practical Tips for Protecting Your Sources and Source Material State Law: Legal Protections for Sources and Source Material

Promising Confidentiality to Your Sources


What are the legal consequences if you promise confidentiality to a source? While your use of confidential sources should generally be the exception and not the rule (its almost always better to get something on the record and for attribution if you can), there are a number of reasons you might wish to promise a source confidentiality. For instance, some sources may only be willing to share information with you if you promise them confidentiality because they fear retaliation or other adverse consequences. In other situations, you may wish to promise your source confidentiality because in some places such a promise makes it harder for someone to require you to disclose the identity of your source in court. Yet by promising your source confidentiality, you may incur legal obligations to your source. Keep in mind that promising a source confidentiality may make it difficult for you to change your mind later. For instance, you might decide that the source's identity is newsworthy and wish to report about it. While the law varies from state to state, some general guidance on this issue is possible. First, consider carefully whether to promise your sources confidentiality. There are several potential benefits and drawbacks of promising confidentiality that you should consider: Benefits of promising confidentiality:

Your source might be willing to give you more information.

In some states, promising your source confidentiality before you receive information will strengthen your ability to resist legal demands for your source's identity. See your state under State Law: Legal Protections for Sources and Source Material to determine if that is the case for you.

Drawbacks of promising confidentiality:

By promising confidentiality to your source, you may be legally bound to keep the promise. If you later decide you wish to reveal your source's identity, your source may be able to sue you if you do so. To learn if your your promise would create a legal obligation to your source, and to learn the consequences of such an obligation, see the section below on how a legal obligation arises for more information.

By promising confidentiality, your readers/viewers/listeners will have less information about your source and will not be able to assess your source's credibility on their own. This can also have an impact on the overall credibility or persuasiveness of your work.

In sum, promising confidentiality can provide benefits to you and your source, but you should only offer it after you have carefully weighed the benefits and drawbacks. If your source demands confidentiality, make sure you intend to maintain confidentiality if you agree. Also, no matter what you decide, it is a good idea to be clear with your source about what he or she should expect with respect to confidentiality. Agree with your source on exactly when and to whom, if anyone, you can reveal your source's identity.

Second, consider whether you will be able to keep the information secret. Once you have obtained information from a confidential source, you will need to keep the source's identity secret. Be careful of revealing any unpublished news you have received if you do not want the information to be public. It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. Resist the temptation. There are a number of negative consequences that can occur if you reveal the identity of confidential sources or unpublished news to anyone. In a number of states, if you reveal your source's identity to anyone, you can lose your ability to protect that information later. This means that even if you could have protected the information from a legal demand, you no longer will be able to do so. Even if you are still able to protect your information from a legal demand for it, the person who knows the information might not be able to do so. You might have a "journalistic privilege" to protect your sources' identities and unpublished information from a legal demand, but your friends and relatives and co-workers might not have such special protection. If a party to a lawsuit discovers that someone else has the information they want, they might ask a judge to require that person to reveal the information. Beyond legal considerations, as a practical matter, the more people who know the information, the more likely it is to be revealed. People are not always good at keeping secrets, and you may not wish for the information to be revealed. If others do not know the identity of a source or a tidbit of unpublished news, they might not even realize it exists, so they may not ever know to seek it from you.

How a Legal Obligation Arises


In general, by promising confidentiality to a source you might develop a legal obligation to your source in two ways, either by contract or through detrimental reliance. If you do not have a legal obligation to your source, typically he or she will not have any legal recourse against you if you break your promise of confidentiality.

By Contract

First, you might have a legal obligation to your source if you have formed a contract with your source. Forming a contract does not require a formal, signed paper document. Contracts also do not require any "magic words." To the contrary, any exchange of promises can potentially represent a binding agreement. Contracts can only be formed if you promise to do something (or refrain from doing something) in exchange for the other person promising to do something (or not do something). A one-way promise, with nothing expected in return, does not form a contract. Thus, an important question in determining whether you formed a contract when you promised a source confidentiality is: Was there an understanding that you would receive something in return? If you promised your source confidentiality with the understanding that you would receive information in return, that may represent a contract. On the other hand, if you promised the source confidentiality freely, with no promise of anything in return, you probably have not formed a contract. Whether you and your source made an exchange of promises that constitutes a contract is based on a how a "reasonable person" would have interpreted your behavior. It is not based on how you or your source subjectively perceived the situation. Even if you exchanged promises in a way that could represent a contract, some courts will hold that contracts formed based on a newsgatherer's promise of confidentiality are not valid. In other words, in some states, if a court deems you a newsgatherer, it will not punish you for revealing the identity of a confidential source to the public. Courts in these states hold that free speech interests, such as those embodied in the First Amendment of the U.S. Constitution, prevent them from punishing you.

By Detrimental Reliance

"Detrimental reliance" (also called "promissory estoppel") is a fancy legal term that essentially means relying on a promise in a costly way. It is a type of promise that is legally binding in many states. It applies when you make a promise to someone that you expect that person to act on, and then that person relies on that promise in a way that could hurt that person if you break your word. The key difference between "detrimental reliance" and a contract is that "detrimental reliance" does not require an exchange of promises -- it only requires a one-way promise, and the the person who has been promised something relying on that promise. An example may help "detrimental reliance" seem more understandable. Imagine that a boss tells his employee that she can have a day off so she can visit her far-away relative, as she had been saying that she wanted to for a long time. The employee, relying on her boss's promise, buys an airplane ticket to see the relative. At this point, the employee may be able to enforce the boss's promise under the doctrine of "detrimental reliance." By promising his employee the day off, the boss knew that his employee would go to visit her relative. The boss knew that his employee would have to spend money to buy a plane ticket. The employee, by buying the plane ticket, relied to her expense on the boss's promise. If the boss were to break his word, it would cause her financial injury. Here's how "detrimental reliance" can come up for you: Imagine that you promise a source confidentiality. You expect that by making this promise, your source will reveal confidential information to you. As you expect, the source reveals confidential information. You then publish the confidential information you received from your source. Later, you want to reveal your source's identity to the public. The source will say the doctrine of "detrimental reliance" binds you because the source only gave you the information because you promised confidentiality. This is similar to what happened in the U.S. Supreme Court case of Cohen v. Cowles Media Co., 501 U.S. 663(1991), in which the Supreme Court held that it was okay to punish two reporters under the doctrine of "detrimental reliance" for breaking their promises.

What Can Happen to You if You Break Your Word?


Remember, your source can only take legal action against you if you promise your source confidentiality in such a way as to create a legally binding obligation. The two ways this can happen are detailed above. Your source cannot prevent you from breaking a promise of confidentiality ahead of time. The First Amendment typically prevents any prior restraints against speaking. Your source also cannot take legal action against you if you are legally obligated to reveal your source's identity. For example, you might be legally obligated to reveal the information as the result of a valid court order. However, if you break your word of your own accord, your source can sue you after the fact. If your source sues you for breaking your word and a court finds you had a legal obligation to keep your word, you may be ordered to pay your source compensatory damages. Generally, this means you must pay money to make up for anything your source has lost because you broke your word. Sometimes, this will not be much, but other times it could be a lot of money. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the reporters had to pay $200,000 to their source.

Legal Challenges to Protecting Confidentiality and Source Material


There are several ways that others can attempt to acquire information about your newsgathering activities, including through a subpoena, search warrant, and discovery order in litigation. The most common of these approaches is through a subpoena. This section will detail when these methods may be used and their effects. Subpoenas A subpoena is a command to appear before a court. A subpoena can either require you to appear in person to provide testimony or information, or it can require you to provide specified documents, records, or other material. You can be subpoenaed in cases where you might not have realized you have relevant information. Subpoenas are typically issued in the early stages of a case, when parties are trying to learn information relevant to their cases. In order to allow the parties in litigation to gather enough information, American judges tend to be generous in granting subpoenas. If you receive a subpoena, you must think carefully about how to respond. You should not ignore it, since you can be punished for doing so. Refer to the section in this guide onResponding to Subpoenas for information on how to respond to a subpoena. If the subpoena relates to information you collected as part of your newsgathering or publishing activities, you might be able to defeat the subpoena and avoid having to appear or disclose information, see the Legal Protections for Sources and Source Material section for more information. Search Warrants Search warrants are orders by judges allowing police or other law-enforcement to search a location and take evidence. Search warrants are used in criminal cases. In most situations, theFourth Amendment to the U.S. Constitution requires police to obtain a search warrant before they can search private premises. To obtain a warrant, police must demonstrate to a judge that they have "probable cause" to believe that the search will yield evidence of a crime. If police do not have a warrant and wish to conduct a search of your premises, you may say no. For most people, if police have a valid search warrant, the search they conduct pursuant to the warrant is legal. If you receive a search warrant that relates to information you collected as part of your newsgathering or publishing activities, you may be able to get it withdrawn. The federalPrivacy Protection Act prohibits the issuance of a search warrant directed at documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. Please see theLegal Protections for Sources and Source Material section for details. Discovery Orders When you are a party to litigation, the opposing parties may use discovery orders to obtain information from you. Discovery orders can take a number of forms. For instance, they may require you to provide documents, or they may require you to answer questions in a deposition. The purpose of discovery orders is to allow all parties to have information so that they can pursue their arguments in court. In federal courts in the U.S., and in most state courts, judges allow parties to conduct broad discovery -- they are generally willing to allow parties to get the information they request. Discovery orders are legally binding, and you can be punished for ignoring them. If you wish to challenge a discovery order that requests something from you, you must do so by notifying the judge who issued the order. The exact reasons you can challenge an order vary by court and jurisdiction. In general, you might be able to object that the information requested is not relevant to the case for which it was requested, that too much information was requested and only some is relevant to the case, that the

request is unduly burdensome, or that you should not have to reveal newsgathering information. To determine whether you can avoid revealing your newsgathering information and sources, see Legal Protections for Sources and Source Material. Keep in mind, however, that if you are a defendant in a lawsuit, your newsgathering materials and source information may be relevant -- or even essential -- to your defense. For example, if you relied on a confidential source for a statement that the plaintiff claims is defamatory, you may be in a position where you need to identify your source in order to show that it was reasonable for you to rely on that source for the information you published. If you refuse to provide the requested information, you may lose your ability to fully defend yourself.

Legal Protections for Sources and Source Material


The use of subpoenas, search warrants, and discovery ordersin litigation that seek to acquire information about your confidentialsources or source material can place a substantial burden on yournewsgathering and online publishing activities, as well as on the freeflow of information in society. Fortunately, you are not powerless when faced with a demandfor information obtained in the course of your newsgatheringactivities. Legal protections exist to protect those who gather newsfrom having to reveal the identity of their confidential sources andfrom having to disclose unpublished information collected in the courseof newsgathering. This section looks at the laws that provideprotection and outlines the character and scope of that protection.Keep in mind that the legal protections available to you differmarkedly from state to state. For information on state shield laws andother legal protections for sources and source material in the fifteenmost populous U.S. states and the District of Columbia, please see the state-specific pages. There are a number of different sources of legal protection forsources and source material. These include state shield laws, federaland state constitutional provisions, federal statutes, and common lawprivileges. In some geographical locations, only one or two sources ofprotection are available. In others, you may be able to take advantageof several sources of legal protection.

State Legislative Protections


More than thirty U.S. states currently have shield laws that providesome level of protection for journalists and others who gatherinformation for dissemination to the public. The first state shield lawwas enacted in Maryland on April 2, 1896, in response to theimprisonment of aBaltimore Sun reporter for refusing to reveala confidential source to a grand jury. Over the years, other stateshave followed suit, recognizing the importance of a reporter's shieldfor supporting the public's "right to know." The scope of shield law protection varies from state to state.The primary differences revolve around the following three questions:

What kind of information does the shield law protect? Some state shield laws only protect the identity of a confidential source, while others protect the identity of a source whether or not you have promised the source confidentiality. In other states, the law protects not only the identity of a source, but also unpublished information collected during newsgathering, such as information provided by a source, a reporter's unpublished notes, outtakes, and work product. Even among this group, there are some differences about exactly what information the shield law protects.

Who is entitled to the protection of the shield law? Some state shield laws limit their application to individuals who have a professional affiliation with an established media entity or require regular employment as a journalist. Other states expressly exclude broadcast and electronic media from coverage. Yet others offer the privilege to a larger group of people who publish information, such as freelancers, authors, electronic publishers, and educators. This question is of critical importance to citizen media sites and online publishers of all kinds. One important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), extended the coverage of California's shield law to online news sites, despite language in the shield law suggesting that only reporters publishing in traditional media were covered. See the California Protections for Sources and Source Material page for details. This area of law, while currently uncertain, is sure to develop significantly in coming years.

Assuming the shield law applies, how strong is its protection? Some states provide those individuals covered by their shield laws with an "absolute" privilege against revealing sources and source material (or just sources, as the case may be). This means that a court or other legal body may not force that individual to reveal the information in question under any circumstances. In other states, shield laws give covered individuals only a "qualified" privilege against revealing sources and source material (again, the precise information covered depends on the state). While the exact standards vary state-to-state, courts applying a qualified privilege generally require that the individual seeking covered information demonstrate that (1) the desired information is central to mounting a claim or defense in a lawsuit; (2) other means of obtaining the information have proven to be inadequate; and (3) the balance of the parties' interests favors disclosure.

For a detailed examination of state shield laws, see the State Law: Legal Protections for Confidential Sources and Source Material section of this guide.

Federal Legislative Protection


Shield Law There presently is no federal shield law. In its last session,Congress considered but did not pass a proposed federal shield law. Themost recent version of the bill, H.R. 2102,excluded from coverage those who do not receive "a substantial portionof [their] livelihood" or "substantial financial gain" from theirnewsgathering and publishing activities. This language would probablyexclude many non-traditional journalists and amateur online publishers,as well as freelance journalists who rely on other work to supplementtheir incomes. In any event, the Congress has not enacted the bill intolaw, so future revisions are possible. Privacy Protection Act An important federal law may protect you with regard to search warrants.Subject to certain exceptions, the Privacy Protection Act (PPA) makesit "unlawful for a government officer or employee, in connection withthe investigation or prosecution of a criminal offense, to search foror seize" work product and documentary materials "possessed by a personin connection with a purpose to disseminate to the public a newspaper,book, broadcast, or other similar form of public communication." 42 U.S.C. 2000aa(a),(b). If the PPA applies to you, it protects you regardless of what state you live in.

What kind of information is covered by the Privacy Protection Act?

The PPA covers a publisher's "work product" and "documentary materials." "Work product" is defined as materials: (1) "prepared, produced,authored, or created, whether by the person in possession of thematerials or by any other person"; (2) "possessed for the purposes ofcommunicating such materials to the public"; and(3) "include mental impressions, conclusions, opinions, or theories ofthe person who prepared, produced, authored, or created such material."42 U.S.C. 2000aa7(b)(1).Work product thus includes things like your notes, drafts, andouttakes. Work product does not include contraband, "fruits" of crime,or materials intended to be or actually used in the commission of acrime. "Documentary materials" are also defined broadly as "materialsupon which information is recorded, and includes, but is not limitedto, written or printed materials, photographs, motion picture films,negatives, video tapes, audio tapes, and other mechanically,magnetically or electronically recorded cards, tapes, or discs." Id. 2000aa-7(a). As with work product, the definition does not includecontraband, "fruits" of crime, or materials intended to be or actuallyused in the commission of a crime.

Who is covered?

While the law on this point is not yet clear, the language ofthe PPA -- reaching "a person in connection with a purpose todisseminate to the public a newspaper, book, broadcast, or other similar form of public communication" -- suggests that it may cover online publishers.

How strong is the protection?

The PPA does not function like a shield law, which allows areporter to refuse to comply with a subpoena or other discovery order.Instead, the PPA allows you to file a civil lawsuit for damages afterthe search and/or seizure takes place, if you believe it violated thelaw. There are a number of exceptions to the PPA. Most importantly,government officials can legally carry out a search and/or seizureotherwise covered by the PPA if there is "probable cause" to believethat the reporter (or other publisher) has evidence linking him or herto a crime. 42 U.S.C. 2000aa(b)(1).The government cannot invoke this exception, however, if the only"offense to which the materials relate consists of the receipt,possession, communication, or withholding of such materials or theinformation contained therein," unless the materials relate to thenational defense or classified information. Id. There is also anexception when authorities have reason to believe that death or seriousinjury will result if the search is delayed. Id. 2000aa(b)(2). For more information on the Privacy Protection Act and afantastic practical guide to dealing with newsroom searches, see theStudent Press Law Center's Student Media Guide to the Privacy Protection Act.

Constitutional Protections
Federal Constitution

A number of state and federal courts have found that the FreeSpeech Clause of the First Amendment of the U.S. Constitution creates a"reporter's privilege" against having to disclose the identity ofconfidential sources and/or turning over unpublished newsgatheringmaterials. While the law is not settled, online publishers may be ableto take advantage of this reporter's privilege. The constitutionalreporter's privilege is not, however, universally recognized.Furthermore, even when recognized, it only provides a "qualifiedprivilege," meaning that the person seeking information can overcome itwith a strong showing of need. Courts that recognize a privilege based on the First Amendment often make reference to the U.S. Supreme Court's decision in Branzburg v. Hayes,408 U.S. 665 (1972). Branzburg is the only case in which the U.S.Supreme Court has addressed the federal reporter's privilege.Unfortunately, it is also a famously confusing case. The majorityopinion, which typically is the legally controlling opinion, held thatthe First Amendment does not provide a reporter with a privilege fromtestifying before a grand jury about information obtained and eventswitnessed in the course of researching a story. However, Justice Powellwrote a concurring opinion in which he stated that demands forinformation from journalists should "be judged on [their] facts by thestriking of a proper balance between freedom of the press and theobligation of all citizens to give relevant testimony." Because JusticePowell was a necessary fifth vote to form a majority, many courts treathis opinion as the controlling opinion. These courts frequently readhis opinion as calling for a qualified privilege for reporters underthe First Amendment. Courts in different states and federal circuits have differentviews about the character and scope of the federal reporter'sprivilege. For more detailed information on the contours of thisprivilege, see the state pages. State Constitutions Quite a few state courts have found that a privilege exists forjournalists under their respective state constitutions. Some states,like California,have explicit constitutional privileges for journalists, similar inform to a shield law. In other states, courts have derived a privilegefrom general state constitutional provisions, similar to the FirstAmendment. For more information on state constitutional privileges, see the the state pages.Keep in mind that, even when a state recognizes a state constitutionalprivilege, its exact character and scope is often uncertain.

Common Law Privileges


Some state and federal courts have created privileges fornewsgatherers under the common law (i.e., judge-made law). Commonlawprotections for confidential sources and source material differ greatlyin their scope and character. As with state and federal constitutionalprivileges, courts develop the common law of privilege on acase-by-case basis, and frequently the law is fraught with ambiguitiesand undefined "grey zones." For more information on common lawprivileges for confidential sources and source material, see the the state pages.

Practical Tips for Protecting Your Sources and Source Material


When you gather and publish information, it may be important to you to protect the confidentiality of your sources or source material. You may not wish for your sources' identities to be revealed, and you may not want all of the information you have gathered to be public. Here are some practical tips for you to consider when seeking to protect your newsgathering information:

Be judicious about promising confidentiality: Promising confidentiality to your sources can provide benefits to you and your sources, but you should only offer it after you have carefully weighed the benefits and drawbacks. Review the section of this guide on Promising Confidentiality to Your Sources before making a decision. If your source demands confidentiality and your reporting requires the source, make sure you intend to maintain confidentiality if you agree. If you later decide you wish to reveal your source's identity, your source may be able to sue you if you break your promise.

Keep secrets secret: Once you have obtained information from a confidential source, keep the source's identity secret. It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. As a practical matter, the more people who know the information, the more likely it is to be revealed. Moreover, if you reveal some information about your source's identity, you may be precluded from protecting the information in the future.

Research whether you can assert a "journalistic privilege" to protect your sources and unpublished information: Many states offer protection for "journalists" who receive subpoenas requesting this information. These privileges arise from a number of different sources of law, including shield laws passed by state legislatures, the U.S. Constitution and state constitutions, and the common law. Check the Legal Protections for Sources and Source Material section of this guide before revealing any information about your sources.

Consider where you publish your work: Where you publish your work can have an impact on your ability to protect your sources and newsgathering information. For instance, in some states you can only invoke the privilege to protect your sources if you publish in traditional print or broadcast media. In other states, you need only publish through an entity that regularly distributes news. See the Legal Protections for Sources and Source Material section of this guide for more information.

State Law: Legal Protections for Sources and Source Material


Different states have different laws that may protect your confidential sources and source material. Different states base their protections on different sources of law. Who is protected, what information is protected, and the strength of protection varies greatly across the states. The state-specific sections below provide information about legal protections in the fifteen most populous U.S. states and the District of Columbia. These sections also include information about the law applied by federal courts in that state. For a general overview of possible protections, see the section on Legal Protections for Sources and Source Material in this guide.

Access to Government Information


This section of the legal guide outlines the wide-array of information available to you from government sources. These sources range from your local city council all the way up to the largest agencies in the federal government. In fact, you might be quite surprised at how much information is available to you. And the best part is that you generally don't need to hire a lawyer or file any complicated forms -- you can access most of this information simply by showing up or filing a relatively simple request. Moreover, you don't need to be a professional journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can make the information available to anyone in the world. For an impressive example of how some people are using the power of new information technologies in conjunction with government information, check out Adrian Holovaty'sChicagocrime.org, a browsable database of crimes reported in Chicago. Regardless of what you publish online, it is likely that at least one (if not many) of the information sources we discuss in this section will be valuable to you. For example, you might want to find out whether the drinking water coming out of your faucet contains pollutants (information that is likely contained in documents held by the Environmental Protection Agency or one of its state counterparts). Perhaps you'd like to know more about how your local school board makes decisions (information that you can get by attending school board meetings). Or perhaps you are concerned that a real estate developer may have been sued for fraud (information that is available by visiting the courthouse in person or accessing the court's electronic docketing system).

California Protections for Sources and Source Material District of Columbia Protections for Sources and Source Material Florida Protections for Sources and Source Material Georgia Protections for Sources and Source Material Illinois Protections for Sources and Source Material Indiana Protections for Sources and Source Material Massachusetts Protections for Sources and Source Material Michigan Protections for Sources and Source Material New Jersey Protections for Sources and Source Material New York Protections for Sources and Source Material North Carolina Protections for Sources and Source Material Ohio Protections for Sources and Source Material Pennsylvania Protections for Sources and Source Material Texas Protections for Sources and Source Material Virginia Protections for Sources and Source Material Washington Protections for Sources and Source Material

Information from these government sources will be especially useful to you if you want to take your publishing activities beyond merely commenting on material posted by others. These sources can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on subjects of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section focusing on city government, which is largely based on meetings of the New York City Council. We should point out, however, that the information you gather from these government sources doesn't have to be limited to the actions of the government itself. Government bodies collect extensive information on individuals, corporations, and other organizations. Much of this information is available to the public. You just have to know where to look. The first thing you will need to consider is which government entity likely has the information you are seeking. Public access to government information extends to a broad range of government sources, including federal and state agencies, Congress and state legislatures, government boards and committees, and the courts. In fact, it might be the case that the information you are interested in is located in more than one place. A little advanced research on your part can go a long way when dealing with the government. Because different laws apply to different government entities, you will want to review each section of this guide that might apply to your situation. If you are not sure whether the information you seek is associated with a federal, state, or local government body, refer to the page on Federal, State, and Local Government Bodies for some helpful information. It is also worth bearing in mind that laws granting access to government information are only one of many important fact-finding tools in your information gathering toolbox. These laws can be very powerful, but their scope is limited to records and information available through government sources. For a broad overview of how you can investigate a full range of actors, including government, individuals, and corporations, see the Newsgathering section of this guide and check out the Center for Investigative Reporting's entertaining and inspirational guide, Raising Hell: A Citizens Guide to the Fine Art of Investigation. Information Held by the Federal Government The federal government is a sprawling and far reaching entity headquartered in Washington, D.C., but with agencies and offices in almost every part of the country. A number of important laws govern your access to information associated with the federal government. The most well known of these laws is the Freedom of Information Act ("FOIA"), which provides access to the public records of most departments, agencies, and offices of the federal government. But several lesser known laws are also important, including the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, the Federal Advisory Committee Act, which allows you to attend the meetings of boards and committees that advise agencies of the federal government, and the Presidential Records Act, which sets out the procedures you must follow to request records from the president and his or her close advisers. If you are seeking records held by a federal government agency, you should review the section on Access to Records from the Federal Government which describes FOIA and provides some practical advice on how to use the law to acquire government records. Keep in mind, however, that FOIA does not cover the President himself/herself, Congress, or the federal judiciary. For information on accessing information from these sources, see the Access to Presidential Records,Access to Congress, and Access to Courts and Court Records sections of this guide, respectively. The federal government often acts through boards, committees, and other government "bodies." Examples include the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Housing Finance Board. A common feature of these agencies, boards, commissions, and other government bodies is that they meet as groups to deliberate or take action on public business. If you wish to attend these meetings, you will need to become familiar with a category of laws called open meetings laws. These important laws give anyone, including members of the traditional and non-traditional press, the ability to attend the meetings of many federal government bodies and to receive reasonable notice of those meetings. In many instances, they also entitle you to obtain copies of minutes, transcripts, or recordings at low cost. See the section on Access to Government Meetings for more information and practical advice. There are basically two types of federal government meetings you may wish to attend and each is governed by a different set of legal requirements. Federal agency meetings are governed by the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, such as the Federal Election Commission and the Federal Trade Commission. Federal advisory committee meetings, which are a strange hybrid type of meeting involving outside advisers tasked with giving advice to the federal government, are governed by the Federal Advisory Committee Act. Information Held by State and Local Governments Just as with the federal government, a number of important laws govern your ability to access information associated with state and local governments. Every state has some version of a "Freedom of Information" (FOI) law sometimes called a "sunshine law" that governs the publics right to access state government records. These FOI laws help the public keep track of its governments actions, from the expenditures of school boards to the governor's decision to pardon prison inmates. For example, in 2003, a parent of a student in Texas, Dianna Pharr, spurred by the financial crisis in her local school district, began filing requests under the Texas Public Information Act to investigate the district's spending and operations. She and other parent volunteers established an online repository for the documents and made them available on a local community website, Keep Eanes Informed. Pharr's efforts received coverage in the local press, and have enabled her community to make informed decisions when dealing with school board proposals.

If the information you are seeking is contained in records held by your state or local government, you will need to review the section on Access to Records from State Governmentsin order to understand how to make a request under the relevant state law. For example, theCalifornia Public Records Act and the New York Freedom of Information Law govern access to records in California and New York, respectively. In many states, local government records can also be requested under the state open records law. Unfortunately, public officials sometimes deny that they are required to turn over information, deny that the public has any right to information, or fail to provide information in a timely way. To ensure that you get the information you need, you should review the section on Practical Tips for Getting Government Records. If you are interested in attending the meetings of state or local government bodies, you should review the section on Access to State and Local Government Meetings. The most familiar examples of these kinds of government bodies at the local level include school boards, city councils, boards of county commissioners, zoning and planning commissions, police review boards, and boards of library trustees. At the state level, examples include state environmental commissions, labor boards, housing boards, and tax commissions, to name a few. Courts and Court Information The court system is yet another resource-rich place for you to access information. Your right to access the court system stems from the First Amendment, and has been expanded to give you the ability to attend almost all court proceedings and inspect public court records. The law provides important tools that you can use to help you understand the intricacies of a particular case, or watch how the court system performs. For example, you can use court records to check whether a doctor has previously been sued for malpractice, or to find the outcome of a criminal case. You should first determine whether you need to access the information at the state or federal level. Once youre armed with that knowledge, visit the pages that discuss access to court proceedings in federal court or state court, for information on your right to attend trials and other court proceedings. If, on the other hand, you want to review court records, such as legal complaints, motions, and other filings, visit the page on Federal Court Records or State Court Records, which describes your right to access court records and provides information on why your request may be denied, and how to appeal a denial. While there is no guarantee that you will get every court record or attend every court proceeding you desire, we've put together some tips that will help ensure that you take full advantage of the wealth of information available through state and federal courts. See the page discussing Practical Tips for Accessing Courts and Court Records for more information. You may also wish to talk with the individuals associated with a court case. Visit the page onAccess to Jury and Trial Participants to understand your ability to contact those who participated in the court proceeding such as the judge, lawyers, parties, witnesses, and jurors. Getting Started If, after reviewing the information in this section, you are still not sure where to start, you can always just browse one of the topics listed below:

Access to Government Records: Describes federal and state freedom of information laws and provides practical advice on how to use these laws to acquire government records.

Access to Government Meetings: Provides an overview of federal and state open meetings laws and explains how to assert your right to attend meetings held by federal, state, and local agencies, boards, committees, and other government bodies.

Access to Congress and the President: Outlines the special set of rules that govern access to Congress and Presidential records.

Access to Courts and Court Records: Provides an overview of federal and state laws that grant you the right to access federal and state court records and court proceedings.

Access to Government Records Access to Government Meetings Identifying Federal, State, and Local Government Bodies Access to Congress and the President Access to Courts and Court Records

Access to Government Records


"Freedom of Information" ("FOI") is a general term for the laws sometimes called "sunshine laws" and principles that govern the publics right to access government records. FOI helps the public keep track of its governments actions, from the campaign expenditures of city commission candidates to federal agencies management of billions of dollars in tax revenues. Without FOI, information-seeking citizens would be left to the whims of individual government agencies, which often do not give up their records easily. Using freedom of information laws is a simple, and potentially powerful, way of obtaining information about the activities of federal, state and many local governments. You don't need to hire a lawyer, and no complicated forms are involvedrequests can be made in a simple letter. And you don't need to be a journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can post the information and make it available to anyone in the world. Your request can yield information that has a real impact on your community. For example, in 2003, a parent of a student in Texas, Dianna Pharr, spurred by the financial crisis in her local school district, began filing multiple requests under the Texas Public Information Act to investigate the district's spending and operations. She and other parent volunteers established an online repository for the documents she received and made them available on a local community website, Keep Eanes Informed. Pharr's efforts received coverage in the local press, and have enabled her community to make informed decisions when dealing with school board proposals. Similarly, in 2006, the nonprofit organization Public Employees for Environmental Responsibility used the Freedom of Information Act to get documents that revealed that genetically-modified crops had been sown on thousands of acres in a federal wildlife refuge. A coalition of nonprofits used this information to sue the U.S. Fish and Wildlife Service for violating federal environmental law. For other examples of the benefits of sunshine laws, see the National Security Archive's 40 Noteworthy Headlines Made Possible by FOIA, 2004-2006. So now that we've convinced you of the value of acquiring government records, it's time to dig into the relevant sections that govern the information you are interested in. Before you start, however, you'll want to first determine whether the information you seek is held by a federal or state governmental body. This is important because different freedom of information laws apply to the federal government and various state government entities. If you are not quite sure whether you should review the federal or state sections of this guide, you might find the page on Identifying Federal, State, and Local Government Bodies helpful. The following pages in this section will help you to understand and use freedom of information laws to acquire government records:

Access to Records from the Federal Government: If you are seeking records held by a federal government agency, you will need to review the section on Access to Records from the Federal Government which describes the federal Freedom of Information Act ("FOIA"). FOIA covers only national agencies, such as the Securities and Exchange Commission, the Environmental Protection Agency and the Federal Energy Regulatory Commission. FOIA does not cover the President himself/herself, Congress, or the federal judiciary. For information on accessing information from these sources, see the Access to Presidential Records, Access to Congress, and Access to Courts and Court Records sections of this guide, respectively.

Access to Records from State Governments: If you are seeking records held by your state or local government, you will need to review the section on Access to Records from State Governments in order to understand how to make a request under the relevant state legislation. For example, the California Public Records Act or the New York Freedom of Information law. In many states, local government records can also be requested under the state open records law.

Practical Tips for Getting Government Records: Unfortunately, public officials sometimes deny that they are required to turn over information, deny that the public has any right to information, or fail to provide information in a timely way. To ensure that you get the information you need, you should review the section on Practical Tips for Getting Government Records.

Access to Records from the Federal Government Access to Records from State Governments Practical Tips for Getting Government Records

Access to Records from the Federal Government


If you are seeking records held by the United States government, you will need to become familiar with the Freedom of Information Act ("FOIA"), which was enacted in 1966. FOIA provides access to the public records of all departments, agencies, and offices of the Executive Branch of the federal government, including the Executive Office of the President. FOIA does not cover the sitting President, Congress, or the federal judiciary. For information on accessing information from these sources, see the Access to Presidential Records, Access to Congress, andAccess to Courts and Court Records sections of this guide, respectively.

FOIA requires federal agencies to: 1. 2. 3. 4. Provide access to their records and information, barring certain exceptions; Suffer penalties for refusing to release covered information; Appoint a FOI officer charged with responding to information requests; and Publish agency regulations and policy statements, including their rules for handling FOIA information requests, in the Federal Register.

The heart of FOIA is a "FOIA request": a written notice to the FOIA officer of a federal agency stating which records you are seeking. You should be forewarned, however, that although FOIA is a powerful tool for getting government information, it involves a rather complicated set of procedures. Before you file a request, you should spend some time reviewing each of the sections listed below. Click on one of the following sections to get started:

Who Can Request Records Under FOIA: Explains who is eligible to make a FOIA request.

What Records Are Available Under FOIA: Describes what kinds of records can be requested, which agencies are covered, and what records are exempted.

How to Request Records Under FOIA: Outlines the steps you should follow in making a request, and explains the procedures the government must follow in responding to a request.

What Are Your Remedies Under FOIA: Describes the courses of action you can take to enforce your rights if you believe that your request has been wrongly denied.

Who Can Request Records Under FOIA What Records Are Available Under FOIA How to Request Records Under FOIA What Are Your Remedies Under FOIA

Access to Records from State Governments


You can access a vast number of state government records by using your state's freedom of information law. All fifty states and the District of Columbia have freedom of information laws granting public access to state government records, most of which are based at least in part on the federal FOIA. However, the laws can vary widely from who can make the requests, to which government body is required to provide access to its records, to the formalities a request must meet. Choose your state from the list below for state-specific information on accessing each state's public records. (Note: This guide currently covers only the 15 most populous states and the District of Columbia. We hope to add additional states to the guide at a later date.)

Access to Public Records in California Access to Public Records in Florida Access to Public Records in Georgia Access to Public Records in Illinois Access to Public Records in Indiana Access to Public Records in Massachusetts Access to Public Records in Michigan Access to Public Records in New Jersey Access to Public Records in New York Access to Public Records in North Carolina Access to Public Records in Ohio Access to Public Records in Pennsylvania Access to Public Records in Texas

Access to Public Records in the District of Columbia Access to Public Records in Virginia Access to Public Records in Washington

Practical Tips for Getting Government Records


While we can't guaranteed that you will get every government record you desire, the following tips will help ensure that you take full advantage of the wealth of information available through state and federal freedom of information laws.

Do some research to identify the agency or agencies that possess the records you seek. A little advanced research can go a long way. Often, the records you are seeking exist in more than one government agency or from both state and federal agencies. Find out where the documents are located and then use this guide to determine from which agency you have the greatest likelihood of getting the records. You should also research who the responsible officials are and where you should address your request(s). If you are looking for records held by the federal government, see the section on Finding and Getting the Federal Records You Seek. If you are interested in state and local government records, see the section on Access to Records from State Governments for guidance.

Exhaust informal means first. FOIA and its state counterparts are powerful tools for getting government information, but they are not the only means at your disposal to get the information you want. It's quite possible that someone else has already requested the records you seek and made those documents available online. A few well-crafted web searches might turn them up, or they might be available in the relevant agency's [Getting the Records|online reading room] or through one of the government records clearinghouses, such as GovernmentDocs.org and GovernmentAttic.org. If you can't find the information online, a phone call or letter to a sympathetic public official asking for the voluntary release of the information might be all you need.

Plan your request carefully. Again, it is wise to think about the information you want, when you need it, and how much you are willing to spend to get it. You should also spend some time researching whether any exemptions might apply to the information you are seeking. Most freedom of information requests run into problems because the information contained in the documents is subject to one of the many exemptions available under FOIA and its state FOI counterparts. See the FOIA Exemptions and Access to Records from State Governments sections of this guide for more information. By anticipating these exemptions, you may be able to tailor your request to get around the exemptions or provide reasons why the exemptions should not apply to your request (e.g., public interest, previous release of information to other requesters, inapplicability).

Send a clear and well written request. If you've done your research, you will know what records to ask for and whom to ask. Take the time to draft a clear description of the records you are requesting. Try and be as specific as possible: include the title and date of each document, the authors, recipients, and other identifying information if you know it. General requests -- such as "all files relating to X subject" -- are unlikely to get you what you want and will often result in delays and additional costs. Be sure and date and sign your request, include a return address, and keep a copy of all correspondence to and from the agency. You should also specify if you want the records released in electronic form or as physical copies.

Put a limit on the costs you are willing to pay. Under the federal FOIA and most state FOI laws, the responding agency can charge you for certain search and copying fees related to your request. Unless you want to be on the hook for thousands of dollars, you should specify in your request how much you are willing to pay. You should also state that if the fees will exceed that amount, you should be notified by the agency before it begins work on your request. You may be able to avoid some copying costs -- but not the search fees -- if you ask to review the records before the agency makes copies.

Request a waiver of fees, if appropriate. If you qualify for a waiver of the search, review, or copying fees, ask for a waiver in your request letter and clearly explain why your waiver request is justified under the applicable law. See the section on Costs and Fees under FOIA and Access to Records from State Governments for more information. If appropriate, emphasize that you are seeking the records not solely for a private, profit-making purpose and that you will be using the information to inform the public about the operations and activities of its government.

Anticipate delays and be patient. Government agencies are generally required to respond to your request within 10 to 20 working days, depending on the relevant FOI law involved. In practice, however, most agencies take much longer to respond, let alone to release records which can sometimes take months or even years. If you haven't received a response to your initial request within the require time period, you should write or call the agency to check the status of your request. While it usually helps to be understanding of their workload (almost all government agencies have FOI backlogs) ask them to commit to a response date and/or a release date for the records and hold them to it.

Be willing to compromise. You should anticipate that problems will arise. It could be that the agency needs more time to locate and review the records you've requested or that the information is covered by one or more exemptions. When appropriate, offer to revise or narrow the scope of your request to move things along. If you revise your request, however, be sure to make clear that your willingness to compromise is not considered a "new" request by the agency (a new request will start the clock running again). If the agency tells you that the records don't exist, ask them to describe their search methodology. Perhaps they aren't looking for the right things or in the right places. It might also help if you offer to resolve fee or fee waiver issues by paying a small amount.

File a lawsuit as a last resort. The simplest -- and often most effective -- remedy is to seek informal resolution of any disputes related to your request. A follow-up telephone call or email can sometimes get things back on track. If this fails to pry the records loose, your first recourse should be to use the internal appeal procedures (if they exist) within the relevant agency. See the sections on What Are Your Remedies Under FOIA andAccess to Records from State Governments for more information. If your internal appeal is not successful, a lawsuit may be on the only way to get the records. Keep in mind, however, that obtaining records through legal action can be a costly and drawn-out process.

Access to Government Meetings


Federal, state, and local governments often act through agencies, boards, committees, and other government "bodies." The most familiar examples of these kinds of government bodies are found at the local level -- they include school boards, city councils, boards of county commissioners, zoning and planning commissions, police review boards, and boards of library trustees. At the state level, examples include state environmental commissions, labor boards, housing boards, and tax commissions, to name a few. The executive branch of the federal government carries out its business through a number of agencies, many of which are governed by multi-member boards of directors or commissioners. Examples include theSecurities and Exchange Commission, the Federal Communications Commission, the Federal Election Commission, and the Federal Housing Finance Board. A common feature of these agencies, boards, commissions, and other government bodies is that they meet as groups to deliberate or take action on public business. For instance, town zoning boards pass new zoning regulations and approve site plans, and state labor boards adopt workplace safety rules. Public access to these meetings is governed by a category of laws called open meetings laws. These important laws give anyone, including members of the traditional and non-traditional press, the ability to scrutinize and report first-hand on government meetings. They give you the right to attend the meetings of most federal, state, and local government bodies and to receive reasonable notice of those meetings. In many instances, they also entitle you to obtain copies of minutes, transcripts, or recordings at low cost. Open meetings laws thus open up a range of possibilities for fact-gathering and investigative reporting about the workings of government at every level. For example, they give you the right to attend the meeting in which the city council adopts its annual budget, the local school board discusses the curriculum, the state environmental board decides how to fight air pollution, or the FCC deliberates about network neutrality regulations. (You can multiply these examples hundred-fold.) And if you miss an important meeting, you can consult minutes or transcripts to catch up on what took place. Open meetings laws will be especially useful to you if you want to take your publishing activities beyond commenting on material from other online sources. They can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on meetings of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section of its site focusing on city government, which is largely based on slated meetings of the New York City Council. While both state and federal open meetings laws provide invaluable access to the actual workings of government, there are a number of challenges to effectively using these laws. For one thing, state open meetings laws are complex. They make use of complicated legal terminology to define what government bodies are covered and what kinds of gatherings qualify as a "meeting." Even more importantly, both federal and state open meetings laws provide specific exemptions that allow government bodies to close meetings or portions of meetings to the public when they deal with certain subject matters, like pending litigation, the purchase of real estate, and official misconduct. These exemptions generally allow government bodies to hold a closed session when they are dealing with private information about an individual, trade secrets, or other confidential documents. The specific definitions and exemptions that will apply in a particular situation, as well as the character of your rights, will depend on what state you are in and whether you are dealing with a federal or state government body. (Note: if you are not sure whether the meeting you would like to attend is part of a federal, state, or local governmental body, you might find the section on Identifying Federal, State, and Local Government Bodies helpful.) You should also be aware that the open meetings laws discussed in this section do not give you unlimited access to all government meetings. For example, neither the Government in the Sunshine Act nor the Federal Advisory Committee Act provide a right of access to legislative

meetings, court proceedings, or meetings of executive departments or the President's staff. Other laws, however, may provide you with access to these proceedings. To learn more about your ability to access Congress's legislative sessions, committee hearings, and documents seeAccess to Congress. To learn more about your ability to attend court proceedings and to obtain court documents, see Access to Courts and Court Records. No law gives you the right to attend federal executive department meetings, but note that the Federal Advisory Committee Actallows you to attend meetings of advisory committees that assist the President. Consult theAccess to Presidential Records section for information about what presidential documents are available for public use. The following pages in this section will help you to understand and use open meetings laws intelligently:

Access to Federal Agency Meetings: Access to federal agency meetings is governed by the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, such as the Securities and Exchange Commission and the Federal Trade Commission. This section provides an overview of this law and describes your right to attend federal agency meetings.

Access to Federal Advisory Committee Meetings: Federal advisory committee meetings are governed by a different law. The Federal Advisory Committee Act allows you to attend the meetings of advisory boards and committees that advise agencies of the federal government. This section provides an overview of this law and describes your right to attend federal advisory committee meetings.

Access to State and Local Government Meetings: State open meetings laws entitle you to attend the meetings of a large number of state and local government bodies. This sections provides information about your right to attend meetings in your state.

Access to Federal Agency Meetings Access to Federal Advisory Committee Meetings Access to State and Local Government Meetings

Access to State and Local Government Meetings


All fifty states and the District of Columbia have enacted open meetings laws. These laws generally require state and local agencies, commissions, boards, and councils to provide advance notice to the public of their meetings, to permit any member of the public to attend them (although not necessarily to participate), and to provide minutes, transcripts or recordings of meetings upon request at little or no cost. While many of these laws are similar to the Government in the Sunshine Act and the Federal Advisory Committee Act in certain respects, significant variation exists on a state-by-state basis. Choose your state from the list below for state-specific information on open meetings laws. (Note: This guide currently covers only the 15 most populous states and the District of Columbia. We hope to add additional states to the guide at a later date.)

Open Meetings Laws in California Open Meetings Laws in Florida Open Meetings Laws in Georgia Open Meetings Laws in Illinois Open Meetings Laws in Indiana Open Meetings Laws in Massachusetts Open Meetings Laws in Michigan Open Meetings Laws in New Jersey Open Meetings Laws in New York Open Meetings Laws in North Carolina Open Meetings Laws in Ohio Open Meetings Laws in Pennsylvania Open Meetings Laws in Texas Open Meetings Laws in the District of Columbia Open Meetings Laws in Virgina Open Meetings Laws in Washington

Identifying Federal, State, and Local Government Bodies


When seeking government information, it is important for you to be able to distinguish between federal,state, and local government bodies. The situation is more complex than it might otherwise seem because of the U.S. system of federalism. The concept of federalism is complicated, but it essentially means that the U.S. federal government shares power with state and local governments that exercise political authority over particular geographical regions. Thus, there may be three (and sometimes even more) government bodies that exercise authority or regulate a particular activity. Fortunately, there are some simple steps you can take to determine whether you are dealing with a state, federal, or local government body:

Check the name of the government body: Often, the name of a government body will indicate what level of government it belongs to. Many federal agencies and executive departments have names that contain "U.S." or "Federal," such as the Federal Communications Commission, theFederal Election Commission, the U.S. Social Security Administration, and the United States of America Department of Commerce. At the state level, many state departments, agencies, boards, and commissions have names that contain the word "State" or the name of the particular state, or both, such as the Massachusetts Department of Elementary and Secondary Education, the Virginia State Corporation Commission, the Florida Department of Environmental Protection, and theIllinois State Board of Education. Finally, at the local level, government bodies will often have names that include the words "county," "city," "township," "town," "district," and the like. For example, you will find the Seattle City Council, the Los Angeles County Board of Supervisors, theMcHenry County Board, the Whitpain Township Planning Commission, the Palmyra, NY Town Zoning Board, and the District School Board of Collier County. In most cases, paying attention to the name of the government body you are dealing with will tip you off to whether it is a federal, state, or local government entity.

Look closely at what the government body does: If you have access to a government body's website or some other source of information about it, then you can look at what it does, who is affected by it, and over what geographical region it has authority. There is no precise litmus test here, but you can generally figure out whether the government body has a nationwide, statewide, or local impact, and this will ordinarily correspond to its place in federal, state, or local government, respectively. This will be most obvious with local government bodies that deal with a particular issue (like zoning, parking, or recycling) in a particular town or township.

Consider location: Sometimes, knowing where a government body is headquartered or located is a good gauge of whether it is a federal, state, or local body. For instance, if a government body is housed in your town or city hall, or in a building with other town, city, or county offices, then it is a good bet that it is a local government body. State government bodies will often be located in your state capital, but this is not always a great indicator because federal offices, agencies, and personnel may be located in major cities like the state capital. (Strictly speaking, federal offices could also be located in small towns, so keep in mind the other factors discussed above.) The main headquarters of most federal agencies and other federal government bodies are in Washington, D.C.

Pick up the phone: The surest way of determining whether a particular government body is part of the federal, state, or local government is to call and ask. While you're at it, you might ask more specifically whether the government body is subject to federal, state, or local open records and open meetings laws. Ask whomever is helping you to be specific.

Special Considerations for Courts There are federal, state, and local court systems in every state. For example, if you are in New York City, there is a federal district court (the United States District Court for the Southern District of New York), a state trial court of general jurisdiction (the New York Supreme Court, New York County), and city courts (like the New York City Civil Court and the New York City Criminal Court). These different court systems may have different rules regarding access to court proceedings and court records. See the Access to Courts and Court Records section for details. The federal court system is split into three levels: the U.S. District Courts, the U.S. Courts of Appeal, and the U.S. Supreme Court.

The name of the court will usually tip you off to whether you are dealing with a federal court. The federal trial courts will have names including "The United States District Court for . . .," such as the United States District Court for the Southern District of New York, the United States District Court for the Middle District of Florida, or the United States District Court for the District of New Jersey. The federal appellate courts will have names including "The United States Courts of Appeals for the ___ Circuit," such as theUnited States Court of Appeals for the Ninth Circuit, the United States Court of Appeals for the First Circuit, and the States Court of Appeals for the Federal Circuit. Of course, you shouldn't have any trouble identifying the Supreme Court of the United States as a federal court. In addition, federal courts will be located in a courthouse bearing the name "United States Courthouse," such as the John Joseph Moakley United States Courthouse in Boston, the Phillip Burton United States Courthouse in San Francisco, and the Thurgood Marshall United States Courthouse in New York. For additional information about the federal courts, see the U.S. Courts website. If you are not dealing with a federal court, then in all likelihood you are dealing with a state court. There is great diversity in the names of the state courts, both at the trial and the appellate level. Luckily, anexcellent Wikipedia article lists the names of and provides links to the trial, intermediate appellate, and highest courts of all fifty states, the District of Columbia, and the U.S. territories and protectorates. If you want to confirm the accuracy of this information, you could check it against State Court Sites from an organization called State and Local Government on the Net. (Incidentally, this website can help you find the websites of a huge number of federal, state, and local government bodies, in addition to courts.)

As noted, local courts exist in many counties, cities, and towns. You'll probably know them by their name ("county court," "city court," and the like) and by their location in the county courthouse or similar local building. You can always call the clerk of the court or contact a local lawyer for clarification.

Access to Congress and the President


If you are interested in information contained in records retained by the President of the United States or the U.S. Congress, you should be aware that neither Congress nor the President are covered by the Freedom of Information Act (FOIA). Instead, both the President and Congress have their own set of rules for public access to their records and have traditionally allowed substantial public access to their proceedings and documents. Choose one of the links below to get started:

Access to Congress Access to Presidential Records

Access to Congress
Congress is not subject to the Freedom of Information Act (FOIA). Nevertheless, both the U.S. House of Representatives and the U.S. Senate have enacted their own rules and have allowed substantial public access to their proceedings and records. You can obtain access to congressional debates and other proceedings, but you need to obtain gallery passes from the office of your Senator or Representative. In addition, networks like C-Span televise and archive a large percentage of floor debates. You also may observe congressional committee meetings, notice of which is posted online. The congressional press galleries offer increased access and support services to members of the press who obtain the proper credentials, but the galleries place limitations on who can qualify for credentials. Finally, the U.S. government's own online portals provide congressional information and documents, and private organizations have developed fantastic tools for finding and organizing this information. We provide links to many of these resources below.

Physical Access to the Main Galleries


The galleries of the House and the Senate are open to the public whenever either body is in session, but gallery passes are required. You can obtain gallery passes from the office of your Senator or Representative (usually, any member can provide passes to both houses). There are three Senate office buildings and three House office buildings; to find the Senators and Representatives for your state, visit the Senate directory or the House directory. Under limited circumstances, the galleries may be closed to the public. When the Senate discusses any business which, in the opinion of a Senator, require secrecy, the Presiding Officer must clear the galleries and keep the doors closed for the duration of the discussion. See Senate Rule XXI. The House galleries may be closed when the Speaker, a member, a delegate, or a resident commissioner indicates that he or she will deliver communications that ought to be kept secret, or when the President sends confidential communications to the House. See House Rule XVII, para. 9 (scroll down).

Access to Committee Meetings


Public access to congressional committees is an important part of government transparency. Committee meetings and hearings generally are open to the public, but members of a committee may vote to close a hearing or meeting under limited circumstances. See Senate Rule XXVI(5)(b) and House Rule XI(g)(1)(2) (scroll down). Senate Committees As a general rule, Senate committee meetings are open to the public. Senate committees may close a meeting if the matter to be discussed would:

disclose matters necessary to be kept secret in the interests of national defense or the confidential conduct of the foreign relations of the United States; relate solely to matters of committee staff personnel or internal staff management or procedure; tend to charge an individual with crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise to expose an individual to public contempt, or will represent a clearly unwarranted invasion of the privacy of an individual; disclose the identity of any informer or law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement; disclose information relating to the trade secrets of financial or commercial information under certain circumstances;

divulge matters required to be kept confidential under other provisions of law or government regulations.

Senate committees must give public notice of their hearings at least one week in advance. The notice must give the date, place, and subject matter of the hearing. See Senate Rule XXVI(4)(a). The Senate Rules do not specify where committees must post this notice, but as a matter of practice they will do so on their websites and in the Congressional Record. For links to Senate committee websites, see the Senate Committee Portal. Finally, Senate committees and subcommittees must make publicly available through the Internet a video recording, audio recording, or transcript of any meeting not later than twenty-one business days after the meeting occurs. See Senate Rule XXVI(5)(e)(2)(A). House Committees As a general rule, House committee hearings and meetings are open to the public. House committees may vote to close a meeting or hearing if disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade, or incriminate any person, or otherwise would violate a law or rule of the House. They must announce the date, place, and subject matter of hearings to the public at least a week in advance in the Daily Digest and on their websites. For links to House committee websites, see the House Committee Portal. House Rules impose no obligation to post transcripts or audio and video recordings of meetings online, but lobbying efforts are underway to try to change that. Additional Resources for Committees

The Congressional Directory provides a listing of all currently functioning committees in both the House and Senate. Clicking on each committee will bring you to links to the committee's homepage, any subcommittees, and a schedule of upcoming meetings. Transcripts of hearings are usually available from the committees' websites. Capitolhearings.org, a service from C-Span, provides live broadcasts of congressional committee hearings. So does Openhearings.org. The Open House Project provides additional helpful information on congressional committee meetings. The Government Printing Office (GPO) makes available legislative publications that are used in committee meetings.

Media Coverage
Members of the media in possession of proper press credentials are allowed access to the press galleries. Each house administers three galleries, one for press (meaning newspapers), one for periodical press, and one for radio and television. These galleries provide increased access to lawmakers and their staffs, and include workspaces and telephones for press use. Gallery staff will assist reporters and answer phones to take messages for the press while congressional proceedings are going on. The press is also given access to official transcripts, notes, and logs of congressional proceedings, and when lawmakers want to issue press releases, copies are generally handed out to everyone in the press gallery. Senate Galleries The Senate's three galleries are:

The Senate Daily Press Gallery The Senate Radio/TV Gallery The Senate Periodical Press Gallery There is also a Senate Photographer's Gallery

House Galleries The House of Representative's three galleries are:

The House Press Gallery The House Radio-Television Correspondents' Gallery The House Periodical Press Gallery

Each has its own credentialing process. For example, the Senate Press Gallery requires that the reporter reside in Washington. The Senate Periodical Press Gallery requires that the periodical in question provide coverage of Washington issues on a continuing basis. A common requirement is that the reporter's organization not be engaged in lobbying activities. The House Press and Radio-Television Galleries advise applicants to go through their Senate counterparts for membership. In contrast, the House Periodical Press Gallery credentials its own members as well as its Senate counterpart, and maintains a list of recognized periodicals. See each gallery's web page for their particular applications and restrictions. The Periodical Press Galleries may be the closest fit for most online publishers. The House application is available online and states that the process can take up to six months. See itsRules and Regulations for details. The procedures for the Senate Periodical Press Gallery are a bit more ambiguous. It provides two similar but not identical "Rules" pages. One instructs applicants to apply through the House Periodical Press Gallery, and the other instructs applicants to apply through the Senate.

http://www.senate.gov/galleries/pdcl/rules.html http://www.senate.gov/galleries/pdcl/rules.htm

The Open House Project has an excellent entry that details the procedure bloggers and online journalists have gone through to obtain membership in the congressional press galleries. It also describes the battles that have been fought to secure the right of online media to gain access to Congress, including the story about WorldNetDaily's eventually successful fight for credentials.

Access to Congressional Documents


Because Congress is not an agency, congressional documents are not subject to the disclosure requirements of the Freedom of Information Act (FOIA). For details on FOIA, see the Access to Records from the Federal Government section. As a matter of practice, however, most documents generated by Congress are publicly available. On occasion, Congress and its committees may designate certain documents, reports, and transcripts confidential or classified. See Goldand v. Central Intelligence Agency, 607 F.2d 339, 346 (D.C. Cir. 1978), which affirms that "Congress has undoubted authority to keep its records secret, authority rooted in the Constitution, longstanding practice, and current congressional rules." For these documents, there is no established method for gaining access to them, and one must request declassification and release of the document from Congress directly. The vast majority of congressional documents are readily available to the public online. There are a host of extremely useful online resources for accessing transcripts of floor debates, committee hearings, and voting records. Disclosures by members of Congress relating to funding and expenditures, drafts of proposed legislation, and congressional reports are also easily accessible online. Below is a list of some of these resources: Government Resources

U.S. Senate Legislation & Records Homepage U.S. House of Representatives Office of the Clerk, House Documents Page The Library of Congresss THOMAS - This official legislation tracker from the U.S. Library of Congress (LOC) features the progress of pending and completed legislation. The LOCs website also contains a number of other resources for congressional information. The Congressional Record - The Congressional Record, published daily when Congress is in session, is the official record of the proceedings and debates of the United States Congress. It includes the accounts of debates, votes, legislation, and committee meeting announcements. Records are available from 1994 on. Congressional Reports - Congressional reports originate from congressional committees and deal with proposed legislation and issues under investigation. The database for the current Congress is updated irregularly, as electronic versions of the documents become available. Reports are available from the 104th Congress (1995) and on. Congressional Hearings - Hearings released to the GPO are searchable and browseable on GPO Access. Reports are available from the 104th Congress (1995) and on. U.S. House of Representatives House Members' Public Disclosures - Members, officers, and staff of the U.S. House of Representatives are required by certain House Rules and federal statutes to file official documents on travel, income, gifts, etc., and to make this information available to the public. These documents are filed with the Clerk of the House.

The Government Accountability Office - This is a congressional organization that serves as a watchdog over federal agencies policies and expenditures, and maintains online reports of its findings. The GAO site features a searchable database of many of these records. The National Archives, Center for Legislative Archives- A useful resource for historical research, the Center for Legislative Archives has documents going back to the First Congress in 1789, some of which are available online.

Resources From Private Organizations

Opencongress.org - Another bill tracker that also contains biographical information on individual Representatives and Senators and committee information. It also features legislation-oriented blogs and news content. The Sunlight Foundation - A foundation founded in January 2006 with the goal of using Internet technologies to help citizens learn more about what their elected representatives are doing and ensure greater transparency and accountability in government. On its website, the foundation provides a list of "Insanely Useful Web Sites"for accessing, tracking, and organizing government information and legislative data. LOUIS - A beta release of the Sunlight Foundation that allows users to search seven categories of legislative and executive documents: Congressional Reports, Congressional Record, Congressional Hearings, Federal Register, Presidential Documents, GAO Reports, and Congressional Bills & Resolutions.

Access to Presidential Records


If you are looking for information contained in presidential records, there are two main sources you can consult - the Federal Register for the public papers of the President and the Archivist of the United States for records available to the public through the Presidential Records Act. The easiest way to get presidential records is through the Federal Register, which makes a collection of official presidential documents available to the public. Every six months the Federal Register publishes a compilation called the Public Papers of the President, which includes documents such as executive orders, proclamations, memoranda, messages to Congress, speeches and press conferences. The Archivist of the United States makes presidential records available to the public through the Presidential Records Act. Although presidential records are not subject to public access requests during the President's term of office, the Presidential Records Act makes presidential records available to the public five years after the President leaves office. The Presidential Records Act established that presidents do not own their White House records as personal property but rather the U.S. Government has "ownership, possession and control" over the records. The Archivist of the United States has "an affirmative duty to make such records available to the public" through the Freedom of Information Act (FOIA) no later than five years after the President leaves office. Who Can Request Records

Any person can access the Federal Register online.

Any person can file a FOIA request to gain can access to presidential records under the Presidential Records Act.

What Records Are Covered

The Federal Register makes the Public Papers of the President available to the public, including proclamations, executive orders, messages to Congress, speeches, press conferences and other documents such as the President's schedule of meetings released by the Office of the Press Secretary.

Under the Presidential Records Act, you can access documentary materials "created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President." According to the definitions section of the Act, this includes books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films and motion pictures.

How to Request Records

The Federal Register archives its records online, and has a helpful search guidance page at http://www.archives.gov/presidentiallibraries/research/guide.html.

Though the Archivist of the United States will take FOIA requests for presidential records available to the public through the Presidential Records Act, it suggests on itswebsite to submit requests to the appropriate Presidential Library. You can find a list of such libraries here. See the section on Filing a FOIA Request in this guide for more information on FOIA.

What Are Your Remedies if You are Denied

If your request for records is denied in whole or in part, you may appeal the denial of access under the Presidential Records Act. The National Archives and Records Administration outlines an administrative appeal process in its NARA Code of Federal Regulations 36 CFR 1270.42. The basic procedure is:

1.

1. 2. 3. 4.

File a written appeal with the appropriate presidential library within 35 days of the denial Explain in the appeal the specific reasons you believe you should have access to the records The appropriate presidential library director then has 30 days to consider the appeal and to respond in writing with the basis for the determination. The director's decision to withhold records is final and is not subject to judicial review.

You may also choose to file a lawsuit in federal court. See American Historical Association v. National Archives and Records Administration, 310 F.Supp.2d 216 (2004).

Restrictions On Your Ability to Access Presidential Records

You can not request access to presidential records during the President's term of office. FOIA does not apply to offices within the Executive Office of the President whose function is to advise and assist the President. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980) (noting that the term agency does not include the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.) However, after a President leaves office, the Presidential Records Act allows access to these records. So, for instance, right now, you cannot request access to President Bush's presidential records through FOIA. But, 5 years after President Bush leaves office, the Presidential Records Act would allow you to access those same records through FOIA.

A former or incumbent president may restrict access to presidential records for up to twelve years if he claims an exemption based on section 2204 of the Presidential Records Act. These six exemptions are for national security information, information relating to appointees to Federal office, information specifically exempt from disclosure by statute, trade secrets and confidential business information, confidential conversations between the President and his advisers, and files which if disclosed would constitute a "clearly unwarranted invasion of privacy." 44 U.S.C. s.s. 2204(a)(1)-(6). After twelve years, these exemptions no longer apply. The regular exemptions under FOIA may apply, however, so you should review the section on FOIA Exemptions before concluding that you are automatically entitled to the information you seek.

In November of 2001, President Bush issued Executive Order 13233 - Further Implications of the Presidential Records Act which gives current and former presidents and vice presidents authority to request that the release of their presidential records be withheld or delayed.

Access to Courts and Court Records


If youre hunting for information, consider a visit to the courthouse, where you can sift through resource-rich court records or attend (sometimes colorful) court proceedings. Courts are centers for dispute resolution. They are public forums in which societal norms and values, as reflected in laws, are used to address and correct wrongs. While a number of laws govern the court system, none is so deeply-ingrained as the presumption that court proceedings should be open to the public.

If you are wondering how attending court proceedings or combing through court records might be valuable to you, here are several great reasons to consider acquiring -- and publishing -- information available from the courts: Youre interested in reporting on justice or the functioning of the court system Some believe that courts dispense justice; others believe that the law is divorced from justice. One good way to explore this issue is by attending a trial. Non-traditional journalists have already had highly visible success in covering court proceedings, as seen in the 2007 trial of Lewis Scooter Libby. A blogger from Firedoglake.com gained press credentials, live-blogged the trial, and provided the public with what the New York Times described as the fullest, fastest public report that traditional reporters used to fact check their stories. Salon applauded Firedoglake for producing insightful and superb coverage that simply never is, and perhaps cannot be, matched by even our largest national media outlets. In this case press credentials were necessary due to the intense public interest, but usually theyre not needed for courtroom access. If you are interested in reporting on justice or the functioning of the court system, you should review the sections on access to federal court and state court proceedings for guidance on how to attend court proceedings. You may want to consult court records to get a better understanding of what is happening in court. For details, see State Court Records and Federal Court Records. You enjoy publishing a good story Attorneys engage in storytelling to win the case for their clients. Conflicts are inherently interesting, and the stories presented at trial tend to offer different interpretations of the truth. Tensions run high, and you may find yourself caring deeply about a previously unknown issue. As a result, courtroom dramas can make compelling subjects for blog posts and other website content. You need merely look at the Citizen Media Law Project Blog for evidence of this and the many fascinating "stories" we cover in the Legal Threats Database. If you enjoy publishing a good story, you should visit the page on Access to the Jury and Trial Participants to find out how to properly contact court participants such as judges, lawyers, parties, witnesses, and jurors to get the juicy details that will bring your story to life. You have a pre-existing interest in one of the parties in a court proceeding If a certain person or institution interests you, following their footprints in court often yields a wealth of information. For example, as part of their coverage of the 1972 election, the Washington Post sent a young journalist on a low level assignment to attend the arraignment of five men who had been arrested for breaking into the Democratic National Committees headquarters. As the journalist paid close attention to the proceedings, he quickly realized that there were more questions that needed investigating. If Bob Woodward hadnt attended that seemingly minor court proceeding, the Watergate story might never have been broken. Besides the obvious value of attending court proceedings, there is a wealth of information available in court records about individuals, corporations, and other organizations that can further aid your investigations. See the sections on access to federal and state court records for guidance on how to access this information. You enjoy historical research Court records can be immensely helpful to historians in two major ways: specific court cases can illuminate a certain aspect of history, and court records in aggregate can show statistical trends that highlight social, cultural, or structural changes. For genealogists, court records can also reveal family relationships, places of residence, occupations, physical or personality descriptions, or naturalization dates. Refer to Genealogy.com and Ancestry.com for more information on how mine court records for information on your family. If you enjoy historical research, you will find a wealth of information in court files, a growing percentage of which are now available electronically. The sections on access to federal and statecourt records should help you find the right place to look for the information you need. Where to Begin Now that we've whetted your interest in court proceedings and records, it's time to do some research so that you will be able to get access to what you need. Before you jump into the materials in this guide, however, you should first determine whether the documents and/or proceedings you are interested in are associated with the federal court system or a state court system. The the page on Identifying Federal, State, and Local Government Bodies should help, as will a preliminary visit to the courthouse. Once you've figured out what information you want and where it is located, you should browse the following sections to get a full understanding of your right to access court records and court proceedings:

Access to Federal and State Courts: Describes your right to attend court proceedings and access court records.

Access to Jury and Trial Participants: Explains how to properly contact court participants such as judges, lawyers, parties, witnesses, and jurors.

Remedies if You Are Denied Access to Court Proceedings: Outlines the procedures you should follow if a judge closes a court proceeding you wish to attend.

Practical Tips for Accessing Courts and Court Records: While we can't guarantee that you will get every court record or attend every court proceeding you desire, the tips listed on this page will help ensure that you take full advantage of the wealth of information available through state and federal courts.

Access to State and Federal Courts Access to Jury and Trial Participants Remedies if You Are Denied Access to Court Proceedings Practical Tips for Accessing Courts and Court Records

Intellectual Property
Intellectual property is a blanket term for multiple areas of law that govern the ownership and rights to "products of the mind." Many, but not all, intellectual property laws seek to encourage innovation and creativity, with an ultimate aim of promoting a general benefit to society. They typically do so by granting a bundle of rights to the originator of the work or creation. Intellectual property encompasses four areas of law, each of which governs creations of different types and promotes different policies: Copyright: Copyright law protects the fruits of creative efforts, called "original works of authorship" in legal terminology. A copyright owner enjoys the exclusive right to reproduce the work, distribute it, display or perform it, and to create derivative works from it, as well as the ability to transfer any or all of these rights. Copyright protection generally lasts for seventy years beyond the death of the original author. Copyright's purpose is to stimulate the production of creative works by giving authors a financial incentive to create new works. Examples of copyrightable works include blog posts, photographs, videos, podcasts, news articles, musical compositions, and computer software. See the Copyright section in this guide for more information. Trademark: Trademark law creates usage rights in words, phrases, symbols, and other indicators that identify the source or sponsorship of goods or services. The owner of a valid trademark can stop others from using its trademark or a similar mark in connection with similar goods and services. The owner of a famous trademark may also stop others from using it in connection with dissimilar goods or services. The main purpose of trademark law is to protect consumers from confusion about the source of a particular good or service, and a secondary purpose is to protect companies that have spent time, effort, and money to create a positive association between their trademarks and their goods and services. Examples of trademarks include the word "Cheerios" for breakfast cereal, the Apple logo for computers, and YouTube's slogan "Broadcast Yourself" for video-hosting services. See the Trademark section in this guide for more information. Trade Secrets: Trade secrets law protects secret information that a company or other organization creates or compiles to give it an economic advantage over its competitors. A trade secret owner can stop others from acquiring its trade secret through improper means, such as theft, trespass, hacking, or breach of a confidentiality agreement, or from disclosing it to others under certain circumstances. Trade secrets law is aimed at encouraging research and innovation and maintaining high standards of commercial morality. Examples of trade secrets include the technical specs of an unreleased product, confidential customer lists, and manufacturing processes and formulas. See the Trade Secrets section in this guide for more information. Patent: Patent law provides ownership rights and protection for unique processes, procedures, methods, inventions, and discoveries. It gives the patent owner the exclusive right to exploit (i.e. create, use, sell, distribute) the invention for a limited period of time (typically twenty years from the time of a patent application filing). Patent law's purpose is to spur innovation by giving inventors a financial incentive to invent. We do not cover patent law in this guide. For general information, see the U.S. Patent and Trademark Office's General Information Concerning Patents.

Copyright Trademark Trade Secrets

Copyright
A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. Its important for two reasons. First, you should understand how you can properly make use of someone elses work quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others dont take unfair (even unlawful) advantage of it. Like any area of the law, copyright can get complex at its outer limits. However, a working knowledge of copyright law is not hard to acquire and will guide you through nearly all the situations you are likely to face in your day to day work. What Copyright Covers Lets start with some of the building blocks. First, all copyright law is federal law and therefore uniform across the country (in theory). States have no role, because the Constitution gives Congress the sole "power . . . [t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress first exercised this power to establish copyrights (and patents) in its first meeting in 1791, and it has regularly revised and updated the law ever since. Though the last comprehensive copyright revision was enacted in 1976, Congress has passed many new copyright laws and amended others sometimes after highly contentious lobbying and debate in the digital era. Second, copyright law covers an extraordinarily broad range of creative work. The law calls them "works of authorship" but copyright protects almost all creative work that can be written down or otherwise captured in a tangible medium:

Literary works which is basically prose, whether a news story, scientific paper, novel, poetry, or any other form of "words-only" (or words-and-pictures) creative work. Musical works both the lyrics and the music, whether from advertising jingles to symphonies. Dramatic works plays, including any accompanying music. Pictorial, graphic, and sculptural works photographs, drawings, paintings, and any other kind of two- or three-dimensional art. Motion pictures and other audiovisual works movies, television shows, YouTube videos, and any kind of multimedia. Sound recordings in addition to the copyright on words and music (above) a separate copyright protects a recording artists rendition of a work Architectural works blueprints and similar plans for buildings.

For more information on works protected under copyright law, see the section in this guide onCopyrightable Subject Matter. Copyright Ownership Owning a copyright gives you the exclusive right to publish, copy or otherwise reproduce the work; to distribute the work publicly (or not so publicly); and to perform or display the work, if it is a work of performance or visual art. Owning a copyright also gives you the exclusive right to prepare "derivative works," which are the original works in new forms for example, a translation into another language, or a movie made from a novel, or a revised or expanded edition of an existing work. Someone who does these things without your permission is infringing your copyright, and the law provides recourse to you. For more details on the exclusive rights granted to a copyright owner, see the section on Rights Granted Under Copyright. Third, copyright is extraordinarily easy to acquire. In fact, you really need do nothing at all the law provides that copyright springs to life and protects an authors work from the time the work is fixed in a tangible medium of expressionfrom which [it] can be perceived reproduced, or otherwise communicated . . . . So when words are put on paper, or paint to canvas, or sights to a videotape, digital camera or cellphone, or even when any of the above are stored in a computers memory theyre copyrighted. Thats it. They dont have to be published. There is no requirement to put a copyright notice on it (though that is often helpful). There is no requirement that it be registered with the Copyright Office in the Library of Congress (though commercial publishers routinely do that, to show up in the database of copyrighted works.) If you are interested in registering your work with the Copyright Office, consult the section on Copyright Registration and Notice. The law requires only that copyrightable works of authorship be "original" but that is an easy hurdle to clear. Unlike the patent laws, there is no requirement that a work be innovative, meritorious, or even particularly bright or interesting. A work of authorship just can't be a copy of anyone else's work, and it must have some modest degree of creativity to it. In 1991, the Supreme Court ruled that an ordinary white-pages telephone book was not sufficiently creative to be copyrighted, but that gives you an idea of how low the barrier is. Any "work of authorship" that you create in the honest application of your own skills will likely be sufficiently "original" to be protected by copyright. So what is the catch? None, really, but there are two cardinal principles of copyright that fortunately limit its reach. First, copyright protects the form in which ideas are expressed (the essay, the novel, the news story in the paper or on the blog) but it does not protect the ideas themselves. Nobody owns ideas. You might write the most insightful, original, and brilliant blog post on how to achieve peace in the Middle East or reduce carbon emissions, but from the moment you publish the post anyone may seize upon that idea to expand upon it, analyze it, criticize it, or discuss it in any way they like. What they cant do is reprint your expression of the idea, without your permission. (And, at least in academia and among reputable publications, they ought not to present the idea as their own, or even to discuss it without

first acknowledging that it is your idea. However, because copyright does not protect ideas, the law does not punish plagiarism of ideas. For more information on the distinction, refer to the section on Copyright Infringement.) Second, copyright does not protect facts. No matter how long and hard you work to uncover and report facts, no matter how significant the impact of your reporting, you dont own those facts. Anyone can repeat them, so long as they do not copy your story itself. By the same token, of course, you can appropriate facts that someone else has reported, without copyright concerns. (You ordinarily have an ethical obligation to credit the source of your facts, but its not a copyright obligation.) For more information on the types of works not covered by copyright, consult the section on Works Not Covered by Copyright. As these principles suggest, copyright in its classic formulation is an effort to balance two often-conflicting goals. We want to encourage people to report the news, create art, publish works of history and science, and generally advance knowledge. The law provides the creators the exclusive ownership of their works for a limited time so that they can make money from them. On the other hand, we want to encourage a free flow of ideas, discussion, and intellectual synergy. Facts and ideas are put into the public domain at the moment of birth. In the words of Oliver Wendell Holmes, "the best test of truth is the power of the thought to get itself accepted in the competition of the market. That at any rate is the theory of our Constitution." Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Using the Work of Others and Licensing Your Work This effort to achieve balance naturally produces conflict. How can you challenge a blog post proposing a new way to reduce carbon emissions unless you can quote from the copyrighted post itself? Requiring you to get the original authors permission would certainly inhibit the free flow of ideas and would come very close to giving that author control over the idea. To ease this conflict, the law recognizes a principle known as "fair use," which is simply the freedom to use anothers copyrighted work in the course of creating your own copyrighted work. There have always been unspecific but sensible limits to this principle you generally can't, for example, quote anothers work by reprinting it in its entirety, even if you threw in a few new words of your own (on the other hand, if the original work was only a few paragraphs long, you might even be able to do that in some circumstances). Generally, courts recognize that if the borrowing is not excessive, that if it advances the creation of a new work, and if it does not undercut the market for the original work, the use is fair. The section on Fair Use in this guide provides more information on the fair use doctrine. In the digital era, "fair use" has become a battleground. No one challenges the original principles, but instant reproduction and worldwide distribution of any digital work is within everyones reach. Some creators of copyrighted works record labels and movie distributors most prominently have imposed electronic lockdowns, known as digital rights management, on their works. This has led some to claim that these lockdowns extinguish their fair use rights. There is another aspect to this political battle. The Constitution authorizes Congress to protect writings and discoveries for "limited times." In the 19th century, a "limited time" meant no more than 28 years after publication. For most of the 20th century, it meant up to 56 years. But since 1998, it has meant for the life of the author and for an additional 70 years. So, if a 25-year old author creates a work in 2008 and lives another 60 years, that work is protected by copyright until 2138, an extraordinary 130 years. By that measure, most of the works of Henry James and Mark Twain would still be copyrighted today. Many critics of the current copyright structure point to this lengthy protection as an unwarranted distortion of limited time, but the Supreme Court upheld the law in 2003. (As a rule of thumb, any work published before 1923 is probably now in the public domain; any work published since then probably is not, but there are exceptions to both those guidelines.) Because a copyright is intangible property (hence, "intellectual property," a field that also includes patents, trademarks, trade secrets, and now URLs and domain names), it can be bought, sold, given away, bequeathed at death, and licensed to others. Indeed, licensing is an active field in copyright law. An authors contract with a publisher is a license; while the author may retain the copyright, the publisher shares the revenue and edits, prints, and distributes the work. Works may also be sold outright, as newspapers often require freelancers to do. Ownership may also vest in the employer from the outset, if creating copyrighted works is part of ones employment. For more information, visit the sections on Licensing Your Contentand Getting Permission to Use the Work of Others to use someone else's work. There are other aspects to copyright law that can be useful to know. For example, works of the US Government are never copyrighted and hence can be reproduced without payment or permission. Copyrighted works such as music, movies, and drama may be performed or displayed (but not copied) without permission in the course of face-to-face teaching and distance learning in schools and universities. A library user is generally entitled to make a single copy of a copyrighted work for private study and scholarship. In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatise on copyright law, but it does provide what we hope is a good understanding of what you need to know, both to make intelligent use of others creative works and to protect your own.

What Copyright Covers - Describes copyrightable subject matter and the rights granted under copyright.

Copyright Ownership - Explains different types of authorship, the registration and notice process, and how to license your work to others.

Using the Work of Others - Describes the types of works not covered by copyright, the doctrine of Fair Use, linking to another's work, getting permission to use another's work, the issues that arise from circumventing copyright controls, and copyright infringement.

Notice-and-Takedown - Outlines the steps involved in issuing and responding to aDMCA takedown notice related to copyrighted material and explains the immunityprovision for user-submitted content under the DMCA.

What Copyright Covers Copyright Ownership Using the Work of Others Copyright Claims Based on User Content

Trademark
A trademark is a word, phrase, symbol or other indicator that identifies the source or sponsorship of goods or services. If an individual, business, or other organization uses a trademark to sell or promote its goods or services, then it can gain the right to exclude others from using the trademark in connection with similar goods or services. Owners of famous trademarks, like "Windows," "McDonald's," or "Google," may also stop others from using them in connection with even dissimilar goods or services. Trademark law is a branch of intellectual property law that is governed by both federal and state laws. By far the most important trademark law is the federal Lanham Act; because state laws generally follow the Lanham Act, this guide focuses on it exclusively. A basic understanding of trademark law is important to your online activities for two reasons. First, as a provider of goods or services (e.g., online publishing, educating the public, newsreporting), you may want to use trademarks to identify your work to the consuming public. In that case, you'll want to understand how to protect your legal rights, so that others do not unfairly take advantage of your reputation and the positive association you've built up between your trademark(s) and your work. Second, you should understand how you can properly make use of someone elses trademark for purposes of news reporting, commentary, and criticism. This overview page and the more detailed sections that follow will help you to understand both of these important aspects of trademark law. Common examples of trademarks include "Yahoo!" in its characteristic red font, YouTube's slogan "Broadcast Yourself," and the venerable "New York Times."

Many trademarks use a stylized font or logo, but a trademark can be as simple as plain text, such as "iPod," or a domain name, such as "hotels.com," so long as the trademark owner uses it to identify its products or services. Trademarks are not limited to traditional marks like text, images, or symbols, but can be anything that acts as a source-identifier for goods or services. Examples of such non-traditional trademarks are the color brown for a shipping company (a trademark of UPS), the sound of chimes for a television channel (a trademark of NBC), and the scent of plumeria for yarn. For more information about what can constitute a trademark, see the section on What Trademark Covers. Not all trademarks receive the same degree of protection. They differ in strength according to their distinctiveness. Generally, the more unique or distinctive the mark is, the greater protection it receives. On a spectrum of decreasing distinctiveness, marks are classified as: (1) fanciful, (2) arbitrary, (3) suggestive, or (4) descriptive. Fanciful marks (made-up words like "Kodak"), arbitrary marks (existing words used in a way unrelated to their common meaning, like "Apple" for computers), and suggestive marks (those that hint at a quality or aspect of the product or service, like "Coppertone") are considered inherently distinctive. Descriptive marks, or marks that describe the product or service directly such as "The Container Store," are not inherently distinctive and require the showing of "secondary meaning" in order to be entitled to trademark protection. Secondary meaning is acquired when consumers associate a descriptive mark with a particular source. Marks that contain a person's name, such as "Dell Computers," or describe a geographic location, such as "Kentucky Fried Chicken," are also considered descriptive marks.

Lastly, a generic word can never receive trademark protection. A generic word is the common name for the product or service to which it attaches -- for example, calling an email service provider "email" would be a generic mark. For more information on the range of protectability of trademarks, see the section on Naming Your Business: Choosing a Name Capable of Trademark Protection. There are two ways to acquire rights or "ownership" in a trademark. The first is by simply using the trademark in commerce in connection with your goods or services. Trademark rights acquired through use in commerce (so-called "common law" rights) are limited to the geographical area in which the trademark has been used or is reasonably expected to be used. This limitation does not typically arise when a trademark is used online because of its wide accessibility. The second way to acquire rights in a trademark is through federal trademark registration. There are several benefits to federally registering your trademark. Perhaps most importantly, it puts others on constructive notice that you are using and claiming rights in the mark. This notice not only discourages others from using your mark, but also creates certain presumptions in your favor in the event of a lawsuit to enforce your trademark rights. Registration is fairly expensive, however, so you will want to consider whether the benefits of registration justify the expense. View our Trademark Ownership page for more information about obtaining trademark rights, registering a trademark, or protecting your rights once established. In addition, our section on Trademark Law and Naming Your Business provides specific information on choosing a name for your website, blog, or organization. The primary goal of trademark law is to protect consumers from confusion about the source or sponsorship of goods and services. It does this by allowing a trademark owner to prevent others from using confusingly similar marks to attract customers. In other words, the law aims at helping consumers accurately identify the products and services that they want to buy and protects them from deceptive market practices. To illustrate, imagine a consumer - Sally. If Sally buys a new computer that is labeled with the distinctive Dell logo, she can be fairly sure that the computer was made by Dell, Inc. and nobody else. She can rely on Dell's reputation without worrying whether the computer was actually made by Dell or some knockoff, lower-quality company. Trademark law prohibits this kind of confusing commercial activity, and allows Dell to sue companies who engage in it for trademark infringement. In recent years, Congress has expanded the scope of trademark law to encompass harms other than consumer confusion, including dilution and cybersquatting, that we discuss below. Federal trademark law protects against three distinct unlawful activities:

Trademark Infringement: Trademark infringement happens when you use a trademark owner's trademark or a similar mark in a way that is likely to confuse the public about the source or sponsor of your products or services. This is the most common type of trademark claim, and it effectuates trademark's primary purpose of avoiding consumer confusion. See What Trademark Covers for details.

Trademark Dilution: Trademark dilution happens when you use a famous trademark in a way that is likely to weaken its capacity to identify the famous trademark owner's goods or services or to tarnish the reputation of the mark. The trademark owner need not show that you created consumer confusion, and dilution may occur even if your goods or services are completely different from the trademark owner's. Because of dilution law, it's probably not a good idea to call a blog "Kodak News" or "McDonald's Blog," unless it is actually about Kodak or McDonald's (in which case you should readUsing the Trademarks of Others carefully). For details on trademark dilution, see What Trademark Covers.

Cybersquatting: Cybersquatting occurs when you register, use, or sell a domain name with a bad faith intent to profit from someone else's trademark. Congress passed the Anticybersquatting Consumer Protection Act in 1999 to stop speculators from buying up multiple domain names and selling them at exorbitant prices to the legitimate owners of the associated trademarks. Certain uses of another's trademark in a domain name may still be protected from liability for cybersquatting. For details, see theCybersquatting section.

Although trademark law provides trademark owners with a powerful tool for protecting the integrity of their trademarks, the law does not permit them to silence legitimate reporting, commentary, criticism, and artistic expression. As one court put it: "Trademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view." L.L. Bean, Inc. v. Drake Publishers, Inc.,811 F.2d 26, 29 (1st Cir. 1987). Because of the important role that trademarks play in our cultural vocabulary, "much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark." The New Kids on the Block v. News America Publ'g, 971 F.2d 302, 306 (9th Cir. 1992). The good news for media creators is that the courts have careved out protections for the public's right to use the trademarks of others in criticism, commentary, news reporting and other forms of noncommercial expression. This point is of special importance not only to journalistic sites, but also to gripe sites that focus criticism on particular companies and often use the companies' trademarks in their domain names. However, while the law is solicitous of your rights of free expression, the legal doctrines in this area are complicated, and so it may be difficult to understand just how the law protects your use of a trademark in a particular act of reporting, commentary, criticism, and the like. If you want to make use of another's trademark in the course of these kinds of activities, you should consult the section on Using the Trademarks of Others.

Finally, if you host user-generated content, such as user comments, you'll want to consider whether trademark law will hold you responsible for materials posted on your website or blog by your users. Unfortunately, the protection provided by the "safe harbors" of the Digital Millennium Copyright Act and Section 230 of the Communications Decency Act generally do not protect you from trademark claims. For details, see Trademark: User-Generated Content. This guide is not a full treatment of trademark law, but it does provide what we hope is a good understanding of how to deal with the legal issues surrounding trademarks. In the sections that follow, we lay out further specifics about the principles described above.

What Trademark Covers Using the Trademarks of Others Cybersquatting Trademark: User-Generated Content

Trade Secrets
A trade secret is a form of intellectual property that applies to business secrets. If a company or other organization creates or compiles information that gives it an economic advantage over its competitors, it can protect that information as a trade secret -- in a sense becoming the "owner" of the trade secret. To do so, however, a business must take reasonable precautions to keep the information secret, and it loses its property right when competitors or the public at large uncover the secret. Trade secrets law is governed by state law. However, most U.S. states have adopted their own slightly modified version of the Uniform Trade Secret Act (UTSA), so there is a good deal of uniformity among state laws on the subject. For state-specific information, please see the State Law: Trade Secrets section of this guide. The main goal of trade secrets law is to provide a way for businesses to capitalize on their unique practices or knowledge created through their time and effort. Unlike copyright, trade secrets law protects ideas and facts, rather than just the form in which they are expressed. A trade secret can be any kind of information relating to a business -- formulas, plans, designs, patterns, supplier lists, customer lists, financial data, personnel information, physical devices, processes, computer software, and a catch-all category of "know-how." The most "well known" trade secret is the "secret formula" for Coca-Cola, which has been kept under wraps for more than 100 years. By definition, trade secrets are not disclosed to the public. In this way, they are different from inventions and creative works that are copyrighted or patented. And, in contrast to copyrighted or patented information, trade secrets are not time-limited -- they last as long as the company manages to keep them secret. The company that creates them has the sole ability to exploit the secret as long as it manages to keep it from becoming public knowledge. The catch is that trade secrets can disappear without warning or any specific period of time passing. Once disclosed, they're gone. In addition, trade secrets law provides no protection against someone independently developing the owner's trade secret information or reverse engineering it from a finished product. For the most part, trade secrets law is directed against industrial espionage and ex-employees sharing their former employers' proprietary information with new employers. You might justifiably ask, then, what all this has to do with citizen media and online publishing? Trade secrets law prohibits publishing someone else's trade secrets under certain circumstances, and businesses and other organizations sometimes look to trade secrets law as a way of stopping the traditional and non-traditional media from publishing valuable, sensitive, or damaging information. Many readers may recall Apple's dispute with Think Secret, AppleInsider, andO'Grady's PowerPage over leaks of confidential information about unreleased Apple products before MacWorld 2005. Apple turned to trade secrets law to make out its case. Ultimately, the courts never decided the merits of Apple's trade secrets claims because Think Secret settled and ceased operations, and Apple voluntarily withdrew its lawsuit against the other sites after a California court upheld the website operators' right to protect the identity of their sources under the California shield law. For additional details on the lawsuits, see our database entries,Apple v. DePlume and Apple v. Does. Going back to 1999, Ford sued a website operator named Robert Lane for posting its confidential documents and photographs on his site. Current and former Ford employees had provided Lane with secret materials in violation of their confidentiality agreements with the auto giant. The court found that Lane had likely violated the Michigan Trade Secrets Act, but held that the First Amendment to the U.S. Constitution did not permit the court to order Lane to remove the photographs and documents from the Internet. See Ford Motor Company v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999), for details. If, like many people, your online activities are limited to synthesizing and commenting on materials you find online, then trade secrets law will not have any real impact on you. For a business to protect information under trade secrets law, the information must be secret. If you can find a piece of information by searching the Internet, then in all likelihood so can the company's competitors, and that information is not a trade secret. If, on the other hand, you engage in investigative reporting or regularly rely on confidential sources, you should familiarize yourself with trade secrets law in order to avoid potential liability and to stand up for yourself should someone send you a cease-and-desist letter. There are two scenarios where trade secrets problems are likely to come up; in legal terminology, this is when a court could find that you have "misappropriated" a trade secret. Scenario One: You personally acquire a trade secret by improper means, such as theft, trespass, hacking, or breach of your own employment contract, even if you do not publish the trade secret. This type of conduct is outside the scope of this guide. If you are accused of engaging in such activities, we suggest that you seek immediate legal assistance. See the section on Finding Legal Help for some suggestions. Scenario Two: You publish secret information received from a source and you know that the source acquired it through theft, hacking, or some other improper means, or breached a duty of confidentiality by giving it to you. This later situation could easily come up if you rely on employee sources for information about a company. If you want to rely on insider sources or are simply curious about what qualifies as a trade secret and what activities may cause trade secret liability, please see Basics of a Trade Secret Claim.

If you are considering publishing information that might be considered a trade secret, don't be intimidated. Not every company document is a trade secret, and a business ordinarily cannot stop you from publishing embarrassing -- but not secret or economically valuable -information. Even if you publish a bona fide trade secret, the First Amendment of the U.S. Constitution may protect you from having to take it down and even from paying damages, especially if you publish the trade secret in order to report or comment on a matter of public concern. To illustrate both points, imagine that a source inside the XYZ Tire Company provides you with a secret company memorandum revealing a hazardous defect in the company's tires; you may have a host of legal arguments why publishing that information is lawful, including that the information in the memorandum is not a trade secret and that the First Amendment protects your activity. Keep in mind, however, that the law is not clear in this area. If you are interested in the legal protections the law may offer your publishing activities, consult thePublishing Trade Secrets section. In the sections that follow, we lay out further specifics about the principles described above. This guide is not a full treatment of trade secrets law, but it does provide what we hope is a good understanding of the legal risks surrounding trade secrets.

Basics of a Trade Secret Claim Publishing Trade Secrets

Risks Associated With Publication


Every time you publish something online, whether it's a news article, blog post, podcast, video, or even a user comment, you open yourself up to potential legal liability. This shouldn't come as too much of a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world. Often the legal risks are small, but not always. The risks you could face when you publish online can take a number of forms, depending on what and how you publish. The sections that follow are not intended to make you an expert on media law, but merely to help you identify potential "red flags" so that when you publish something that might result in liability, you will know to be extra careful and will take the necessary steps to minimize your potential legal risks. Let's start with the more obvious risks. First, if you publish information that harms the reputation of another person, group, or organization, you may be liable for "defamation" or "false light." Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements).False light, which is similar to defamation, generally involves untrue factual implications. The crux of both of these claims is falsity; truthful statements and implications that harm another's reputation will not create liability, although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature. We explain the details of defamation and false light and provide some practical tips for avoiding defamation and false light claims in the section on Publishing Information that Harms Reputation. Second, if you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This would include such things as writing about a person's medical condition, sexual activities, or financial troubles. If you use someone else's name, likeness, or other personal attributes without their permission for an exploitative purpose you could also face liability for what is called misappropriation or right of publicity. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial. We discuss the details of misappropriation/right of publicity and private facts claims and provide some practical tips for avoiding these claims in the section on Publishing Personal and Private Information. Third, if you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from RSS feeds, section 230 of the Communications Decency Act (CDA 230) will likely shield you from liability for problematic statements made by your users, guests and other third-parties. This important federal law protects you from tort liability for statements contained in these materials and any other user-submitted content you publish on your site. You will not lose this immunity even if you edit this content, whether for accuracy or civility, and you are entitled to immunity so long as your edits do not substantially alter the meaning of the original statements. Keep in mind that CDA 230 will only protect you if a third-party not you or your employee or someone acting under your direction posts something on your blog or website. It does not shield you from liability for your own statements. We cover this protection in more detail in the section on Publishing the Statements and Content of Others. Fourth, if you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law. Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims under the Digital Millennium Copyright Act (DMCA), so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing. We cover liability associated with

State Law: Trade Secrets

copyright, trademark, and trade secrets, as well as the procedures you should follow under the DMCA, in the section onIntellectual Property. Fifth, if you are blogger or social media user who reviews or otherwise writes about products and services, the Federal Trade Commission recently issued "Guides Concerning the Use of Endorsements and Testimonials in Advertising" that may impose disclosure requirements on you. These guidelines require that you disclose "material connections" you may have with a company whose products or services you "endorse." Without the legal jargon, this means that bloggers and social media users must disclose their relationship with a company when they are being paid or otherwise compensated by the company to comment favorably on its products or services. We cover these requirements in the section on Publishing Product or Service Endorsements. Lastly, as you publish your work online you may want to correct things you have previously published. Your willingness to fix past errors in your work will provide several benefits. It will make your work more accurate and reliable and will likely diminish your liability for defamation and other potential legal claims. We explain the benefits of correcting your errors and provide some practical tips for handling requests to correct or remove material in the section on Correcting or Retracting Your Work After Publication.

Publishing Information that Harms Another's Reputation Publishing Personal and Private Information Publishing the Statements and Content of Others Correcting or Retracting Your Work After Publication Publishing Product or Service Endorsements Dealing with Foreign Legal Threats

Unique Content: Special Risks


Creating a legal guide for online and citizen media is a significant undertaking, so it is no surprise that we haven't been able to cover every topic we think should be covered. This page collects some "special situations" that we think warrant additional discussion in the guide. If you have suggestions for additional subjects or would like to help us work on the guide, pleaselet us know. Some of the topics we are working on, or hope to address in the future, include: 1. Employee Blogs

1. 2. 3.

Disclosure of Trade Secrets Disclosure of Financial Information Other Issues

2.

Covering Politics and Elections

1. 2. 3. 4.

Documenting Your Vote: Photography and Videography at Polling Places Covering Political Campaigns Seeking to Influence Elections Campaign Finance Law

3.

Publishing Information For or About Children

1. 2.

Juvenile Proceedings Child Online Protection Act

4.

Publishing Reviews and Consumer Ratings of Restaurants, Services, People, Etc.

1. 2.

Publishing Your Own Reviews Publishing the Reviews and Ratings of Others

Guides and Resources

Citizen Media Legal Guide

Legal Threats Database

Guide to Website Operator Immunity & Section 230

CMLP Project Blogs


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CMLP Main Blog Legal Threats Blog International Blog Citizen Media Law Podcast

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Primer on Section 230 of the Communications Decency Act Shield Law Primer & Resources Live-Blogging and Tweeting from Court

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Resources on Internet Law


Law.com: Dictionary Legal Information Institute: Wex Legal-Explanations.com: Legal Resources in Plain English LawGuru

EFF: Internet Law Treatise EFF Legal Guide for Bloggers Chilling Effects Clearinghouse Eric Goldman, Technology & Maketing Law Blog The Internet Law Library

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First Amendment Library PreCYdent Legal Information Institute: Court Opinions Public Library of Law AltLaw Massachusetts Cases Justia FindLaw lexisONE Curia (EU cases) CanLII (Canadian cases) Internet Law Library: Online Resources

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State and Local Governments

State and Local Government on the

websites for states.

Net

Subject-Specific Resources
Creating a Business/Nonprofit

Nolo Press FindLaw: Ten Things to Think About: Picking a Business Form Findlaw: Choosing the Best Ownership Structure for Your Business IRS: Employer Identification Number Eric Goldman, Co-Blogging Law Ideoblog: Group blog agreements Truth On the Market: Group Blog Agreement Concurring Opinions: Going Commercial IRS: Life Cycle of a Public Charity Free Management Library: Basic Guide to Non-Profit Financial Management Johnson Center: Nonprofit Good Practice Guide Free Management Library: A Complete Integrated Online Library for Nonprofits & For-Profits Nonprofit Law Blog Bruce R. Hopkins, "Starting and Managing a Nonprofit Organization", John Wiley & Sons, Inc., Fourth ed., 2005. Anthony Mancuso, "How to Form a Nonprofit Corporation", Nolo Press, 8th ed., 2007.

Insurance

Volokh Conspiracy: Bloggers -- You Might Have Already Had Libel Insurance

Access/Freedom of Information

RCFP Open Government Guide WikiFOIA Citizen Access Project

Gathering and Publishing Information

Reporters Committee for Freedom of the Press First Amendment Handbook CUNY Journalism School/Knight Citizen News Network: Top 10 Rules for Limiting Legal Risk EFF's Six Simple Steps You Can Take To Protect Your Gripe or Parody Site

Third-Party Content

CMLP Primer on Section 230 of the Communications Decency Act

Intellectual Propery

CMLP Primer on Copyright Liability and Fair Use Chilling Effects Clearinghouse Keep Your Copyrights Creative Commons, Podcasting Legal Guide

Responding to Legal Threats/Finding Help

Chilling Effects Clearinghouse Probono.net

The Fair Use Network Public Citizen American Bar Association: Consumers' Guide to Legal Help: Helping Yourself SelfHelpSupport.org Mistakes to Avoid Before Hiring a Lawyer Knight Citizen News Network: Top 10 Rules for Limiting Legal Risk 100 Essential Legal and Privacy Guides for Bloggers

Cyberharassment and Cyberbullying Laws

State Cyberstalking, Cyberharassment and Cyberbullying Laws - Summary with links to state statutes prepared by National Conference of State Legislatures.

AutoAdmit
NOTE: The information and commentary contained in this database entry are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute.

Posted September 10th, 2007 by CMLP Staff Summary

Threat Type: Lawsuit Status: Concluded Disposition: Settled (total); Subpoena Enforced

Date: 06/08/2007 Location: Connecticut Verdict/Settlement Amount: n/a

Legal Claims: Copyright Infringement; Defamation; False Light; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Publication of Private Facts; Right of Publicity

Two female Yale Law School students, captioned as Does I & II, sued Anthony Ciolli, the former chief education director of the popular law school admissions forum, AutoAdmit, and a host of pseudonymous users of the forum over vulgar, sexually... read full description
Parties

Party Issuing Legal Threat: John Doe I; John Doe II

Party Receiving Legal Threat: Anthony Ciolli; Mathew C. Ryan; Ryan C. Mariner; Individuals whose true names are unknown

Type of Party: Individual Location of Party: Connecticut Legal Counsel: Mark A. Lemley; David N. Rosen; Ashok Ramani; Benjamin W. Berkowitz; Dorothy McLaughlin; Rose Darling; Steven Mitra

Type of Party: Individual Location of Party: Pennsylvania Legal Counsel: Marc Randazza (Ciolli); Charles E. Vermette, Jr.; Daniel J. Hoppe, Jr.; Orlando P. Ojeda, Jr.; W. Anthony Collins, Jr. (A horse walks into a bar); John R. Williams (AK47); Joseph G. Fortner, Jr.; Susan J. O'Donnell (Matthew C. Ryan, aka ".D")

Description Two female Yale Law School students, captioned as Does I & II, sued Anthony Ciolli, the former chief education director of the popular law school admissions forum, AutoAdmit, and a host of pseudonymous users of the forum over vulgar, sexually explicit, and threatening comments posted about them on the forum. In addition to making numerous derogatory and sexually explicit statements about the two students, pseudonymous users of the site created another website, t14talent: The Most Appealing Women @ Top Law Schools(now defunct), and posted photographs of one of the students without her permission. (Although the complaint is not entirely clear on this point, the student claims copyrightownership in these photographs in addition to publicity rights, indicating that she may have been the creator of the photos and posted them online.) According to the complaint, the two students complained about the forum postings to the AutoAdmit staff, but AutoAdmit did not remove the material. Ciolli disputes that he had any authority to remove the offensive postings. In June 2007, the two students sued in federal court in Connecticut, asserting claims ofdefamation, copyright infringement, unauthorized appropriation of name and likeness, unreasonable publicity given to another's life, false light invasion of privacy, and other torts. Soon after filing, they moved to proceed anonymously, and the court granted that request. In August 2007, the plaintiffs moved to modify the court's scheduling order in order to give them time to investigate the identity of the pseudonymous defendants and to amend their complaint. The court granted the initial request and two subsequent requests for thirty-day extensions, the last of which was requested on October 4. According to a tip posted on David Lat's Above the Law blog, it is unlikely that the court will grant a fourth extension, so an amended complaint may be forthcoming relatively soon. Update: 11/8/07 - Plaintiffs filed an amended complaint dropping Ciolli from the lawsuit. 1/24/08 - Plaintiffs filed a motion for expedited discovery seeking to uncover the identities of the pseudonymous posters listed in the complaint. 1/29/08 - Court granted motion for expedited discovery. 2/22/08 - Pseudonymous defendant "AK47" moved to quash the subpoena directed at AT&T requesting information about his identity.

3/2/08 - Plaintiffs deposed former defendant Anthony Ciolli, at which Ciolli acknowledged that his AOL Instant Messenger username is "AnthonyCiolli." 3/4/08 - Former defendant Anthony Ciolli filed a lawsuit in Pennsylvania state court against the plaintiffs, their lawyers, and other defendants for wrongful initiation of civilproceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness. 3/18/08 - Plaintiffs issued a subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" and related information about the account, including "other user names and login IDs and/or Internet Protocol ("IP") addresses associated with the IM username 'AnthonyCiolli.'" 4/7/08 - Ciolli filed a motion to quash the AOL subpoena in federal district court in Virginia. 06/13/08 - The court denied AK47's motion to quash the subpoena seeking his identity from AT&T. 08/05/08 - Plaintiffs filed an amended complaint that names Mathew C. Ryan (previously known by username ":D") as a defendant. Legal Satyricon "can confirm with 100% certainty that the guy in the complaint is neither an attorney nor a law professor." 8/13/08 - Defendant "a horse walks into a bar", a.k.a Ryan Mariner filed a motion to dismiss, arguing that the plaintiff's have stated no cause of action against him and that they have failed to prosecute the action against him despite offers to accept service made through counsel. 9/10/08 - Plaintiffs filed papers in opposition to Mariner's motion to dismiss. 9/19/08 - The United States District Court for the Western District of Virginia held that the plaintiffs' subpoena to AOL seeking the names of "all persons who have registered or used" the username "AnthonyCiolli" was facially invalid because it was issued from the wrong court. The court determined that it should have issued from the United States District Court for the Eastern District of Virginia. Because the court concluded that it lacked jurisdiction, it did not reach the merits of Anthony Ciolli's motion to quash. 10/26/08 - Plaintiffs filed a notice of settlement and request for dismissal against defendant "Whamo." 3/31/09 - Pennsylvania federal court largely denied the defendants' motion to dismiss Anthony Ciolli's complaint in Ciolli v. Iravani, but gave defendants leave to renew their motion after jurisdictional discovery. The court also struck certain allegations from the complaint relating to settlement negotiations in the Connecticut lawsuit. 4/30/09 - Connecticut federal court denies Matthew Ryan's motion to dismiss. 5/21/09 - Matthew Ryan files his answer to the second amended complaint in Connecticut federal court. 9/29/09 - Plaintiffs filed a Notice of Settlement and Request for Dismissal of Action Against Defendant ":D", A.K.A. Matthew C. Ryan 10/16/09 - Plaintiffs filed a Notice of Voluntary Dismissal of Action Against Remaining Defendants Without Prejudice by Doe 1, Doe 2 10/23/09 - Court dismissed case Related Links:

Justia: Case Docket The Washington Post: Harsh Words Die Hard on the Web Technology & Marketing Blog: AutoAdmit Fiasco Turns into a Lawsuit Concurring Opinions: What's Going on With the AutoAdmit Lawsuit? Wall Street Journal Law Blog Posts: Law Firm Rescinds Offer to Ex-AutoAdmit Executive; AutoAdmit, Contingency Fees and Suing Food Critics; Why Was Ex-AutoAdmit Director Ciolli Sued? Yale Daily News: Law students sue authors of online posts Ars Technica: Yale students unable to identify anonymous forum bashers Wall Street Journal Law Blog: Subpoenas Allowed in AutoAdmit Suit Courant: Yale students name man who allegedly defamed them Legal Satyricon: Another Amended Complaint in the Auto Admit Case Legal Satyricon: "A Horse Walks Into A Bar" Makes His Appearance Legal Satyricon: Auto Admit Plaintiffs Respond to Mariner's Motion to Dismiss Legal Satyricon: Auto Admit Motion to Quash Granted


Details

Legal Satyricon: Ruling on Motion to Dismiss in Ciolli v. Iravani Yale Daily News: Law graduates settle suit Hartford Courant: Ex-Yale Students Settle Internet Defamation Lawsuit

Website(s) Involved:

Content Type(s): Photo, Text

AutoAdmit t14talent: The Most Appealing Women @ Top Law Schools (acquired and taken down by AutoAdmit)
Publication Medium: Forum

Subject Area(s): Anonymity Copyright Defamation False Light Publication of Private Facts Right of Publicity Section 230 Third-Party Content

Court Information & Documents

Location of Filing/Threat: Connecticut Court Name: District of Connecticut Case Number:

Source of Law: United States; Connecticut Court Type: Federal

3:07CV00909 Relevant Documents:

Complaint (06-08-2007)

Does' First Motion to Modify Scheduling Order (08-06-2007)

Does' Second Motion to Modify Scheduling Order (09-06-2007)

Does' Third Motion to Modify Scheduling Order (10-04-2007)

Amended Complaint (11-08-2007)

Plaintiffs' Request for Expedited Discovery (01-24-2008)

Plaintiffs' Memorandum of Law in Support of Motion for Expedited Discovery (01-24-2008)

Declaration of Doe I in Support of Plaintiffs' Motion for Expedited Discovery (01-24-2008)

Declaration of Doe II in Support of Expedited Discovery (01-24-2008)

Attachment 4 to Request for Expedited Discovery (01-24-2008)

Declaration of Steve Mitra in Support of Motion for Limited Expedited Discovery (01-24-2008)

Proposed Order Granting Plaintiffs' Motion for Expedited Discovery (01-24-2008)

AK47's Motion to Quash (02-22-2008)

Ciolli Complaint (03-04-2008)

Ciolli Memorandum in Support of Motion to Quash (04-07-2008)

Third Party Movant's Motion to Quash (04-23-2008)

Order Setting Time to Respond to Ciolli and Third-Party Movant's Motions to Quash (04-29-2008)

Plaintiff's Supplemental Memorandum in Opposition to AK47's Motion to Quash (05-08-2008)

Supplemental Memorandum in Support of Motion to Quash and Suggestion of Dismissal for Lack of Subject Matter Jurisdiction (05-11-2008)

Order Denying AK47s Motion to Quash (06-13-2008)

Doe 1's and Doe 2's Second Amendment Complaint (08-05-2008)

Mariner's Motion to Dismiss (08-13-2008)

Plaintiffs' Memorandum of Law in Opposition to Ryan Mariner's Motion to Dismiss (09-10-2008)

Declaration of Rose Darling in Support of Plaintiffs' Opposition to Ryan Mariner's Motion to Dismiss (0910-2008)

Memorandum Opinion in Doe v. Pauliewalnuts (09-19-2008)

Notice of Settlement and Request for Dismissal of Action Against Defendant "Whamo" (10-16-2008)

Decision on Motion to Dismiss in Ciolli v. Iravani (03-31-2009)

Ruling on Ryan's Motion to Dismiss in Doe v. Ciolli (04-30-2009)

Ryan's Answer to Second Amended Complaint (05-21-2009)

Notice of Settlement and Request for Dismissal of Action Against Defendant Matthew C. Ryan (09-292009)

Notice of Voluntary Dismissal of Action Against Remaining Defendants Without Prejudice (10-16-2009)