Bloggers Are Seeking Protection as Journalists

By D.H. Kerby

After the attempted bombing on Christmas Day, Chris Elliott and Steven Frischling, a travel journalist and travel blogger respectively, posted a Transportation Security Administration Security Directive on the Internet. It had been leaked to them by a source (or sources) inside the TSA, which then sent agents to their homes Dec. 29 in an attempt to learn their sources’ identities, according to Wired.com.

Frischling complied with the TSA’s request for information, whereas Elliott did not and sought the advice of an attorney. The armed agents who visited Frischling had threatened him with job loss and threatened to have him designated a security risk so that it would be more difficult for him to fly, also according to Wired.

In addition to writing on his website (www.Elliott.org), Chris Elliott writes for the Washington Post and MSNBC, whereas Frischling’s work is mainly freelance and Internet-based. (He blogs under “Flying with Fish” at boardingarea.com.) The proposed “Free Flow of Information Act of 2009,” which is wending its way through the legislature, may yet remedy such situations as Mr. Elliott found himself in; the lack so far of a federal shield law for journalists has been cited as one of the reasons that Mr. Frischling chose to provide information to the TSA.

Elliot had planned to fight the subpoena he received, but on New Year’s Eve, he said, the government withdrew its subpoenas.

John Drennan, deputy chief counsel for enforcement at the TSA, has apologized to Frischling for the treatment he received from the agents, Wired.com reports.

“It didn’t take very long for the agent to realize that I was not going to talk to him, not going to give him what he wanted,” Elliot said.

As soon as the agent left, Elliott called an attorney. “That’s what it appears like,” Elliott said regarding a statement that “He (Frischling) just counts as a blogger, whereas you (Elliott) count as a journalist.” The New York Times identifies both as “internet writers.”

“… But all I can say is thank God for my training. Thank God for the journalism law class … I’m sure to some people this is going to be more ammunition for why there should be a distinction between journalists and bloggers …,” Elliott added.

Elliott says he favors a definition of “journalist” that is more inclusive. “Maybe journalists should be defining themselves,” he said.

That proposed law includes a definition of “covered persons” which excludes wide swaths of those who spend their time collecting information and distributing it to the public. The act specifies that a “covered person” is “a person who regularly gathers, photographs, records, writes, edits, reports, or publishes information concerning matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or substantial financial gain … (It) excludes from that definition foreign powers and their agents and certain terrorist organizations and individuals,” according to the official summary of the legislation available at OpenCongress.org. Since most bloggers do not fit the financial criteria, they would be excluded from protection against having to disclose the identity of a confidential source.

In contrast to the visit Frischling received, Elliott said that the agent who came to his home was, “very polite” and called him “sir” a lot. Even Frishling would write in his blog that the agents who came to his home were “polite.”

D.H. Kerby is a writer in Philadelphia. Email DH@DHKerby.com

From The Progressive Populist, Febuary 15, 2010