Patterico's Pontifications

3/26/2009

Did the JournoList Leaker Violate the Privacy of List Members?

Filed under: General — Patterico @ 9:10 pm



Interesting question raised by the Mickey Kaus JournoList leak: isn’t it wrong for the leaker to have leaked this? Everyone on that list had an understanding that the communications between list members would be off the record. So, even though it was a big listserv, that understanding gave people a legitimate expectation of some privacy.

Then again, as someone who has seen the contexts of his supposedly private e-mails summarized in a comments section to show what a bad guy I am, I think you have to recognize that there will always be cretins who don’t respect normal conventions regarding e-mail privacy, keeping their word, etc. The larger the group, the greater the chance of such a turncoat leaking your e-mail.

And (as I have said before), as long as every journalist on the list is already identified as a openly left-leaning writer (like Eric Alterman, for example) I don’t see the list as Dangerous or Evil. So it’s not like there is some clear overarching societal benefit to breaking the off-the-record understanding.

Whether Kaus did anything wrong is a different question. Is it wrong for a journalist to repeat something that another journalist reveals he was told off the record? If the journalist revealing the comment knows he will be quoted for the record?

I say: not always.

For example, I once interviewed former L.A Times reporter Chuck Philips, who told me about things he claimed the FBI had said to him off the record. I repeated the statements. I thought they made Philips look bad for revealing them. He knew he was on the record when he talked to me. And what he was revealing — that the FBI believed Steven Seagal had not been involved in the plot against Anita Busch — was unlikely to be embarrassing to the FBI, in my estimation.

Under those circumstances, revealing the off the record statement told my readers something about Chuck Philips the reporter — that he was willing to sell out the confidences of his sources if he felt that it helped his agenda. That, I think, was worth sharing.

Reading the content of the e-mails published by Kaus, I think these may have been worth sharing as well.

63 Responses to “Did the JournoList Leaker Violate the Privacy of List Members?”

  1. Is it wrong for a journalist to repeat something that another journalist reveals he was told off the record? If the journalist revealing the comment knows he will be quoted for the record?

    Absolutely not. If the journalist revealing the list wanted it off the record, he could have specified that or not given the quote.

    Stashiu3 (460dc1)

  2. as long as every journalist on the list is already identified as a openly left-leaning writer

    Not all of them are “openly left-leaning”…

    yarrrr (d791d4)

  3. “Whether Kaus did anything wrong is a different question.”

    Kaus was not a party to any understanding of confidentiality among members of the group. We do not know anything about his understanding with whoever leaked him the information at this point.

    Frankly, after the Politico story blew the existence of this group wise open, embarrassing its participants, the ability of its 300 members to maintain its continued confidentiality and anonymity was a pipedream. Participants were foolish to expect it to continue.

    Interestingly the story dropped off memeorandum as of 12:00 Eastern. The left wasn’t following according to them. I’ll bet!

    daleyrocks (5d22c0)

  4. Not all of them are “openly left-leaning”…

    Name one who isn’t. That would be news, in my view — but I admit I haven’t researched the identities of the people Kaus named.

    Patterico (cc3b34)

  5. In terms of the expectation of privacy, it’s not merely the size of the group. It is that people working in the fields of journalism, politics and the law should all have some level of awareness that anything put in an e-mail is prone to discovery and publication. More than 20 years after Ollie North, and JournoLists haven’t figured this out?

    Karl (3bf5f8)

  6. Kaus was not a party to any understanding of confidentiality among members of the group.

    No, but the analysis isn’t that simple, in my view.

    I forward one of your private e-mails to me to Instapundit with the intent that he publish it and embarrass you. Should he?

    I think it would take a DAMNED good reason to overcome the privacy interest there, even though he is a party to nothing.

    Patterico (cc3b34)

  7. Whether a group of hundreds of journalists can be private in the same sense as an individual is questionable.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  8. I received a loose quotation of Charles Lindbergh regarding the story of the person fired (or not hired) because of a Twitter post and it applies equally well here:

    “Never say anything you wouldn’t want shouted from the rooftops; never write anything you wouldn’t want to see on the front page of the newspaper.”

    In this day, anything that is posted publicly online (even in a supposedly “private” listserv is fair game. If you don’t want things you say getting in the open, don’t say them. Simple as that. As far as a “reasonable expectation of privacy” is concerned, on the internet, it doesn’t exist.

    tjwilliams (831c6e)

  9. “Is it wrong for a journalist to repeat something that another journalist reveals he was told off the record? If the journalist revealing the comment knows he will be quoted for the record?”

    Thos isn’t exactly like the N.Y. Times revealing national security secrets, since there are laws against that.

    Could you perhaps label your jounalists and “he’s” above to make it clear who (A) is revealing and who is being quoted (A) or (B)?

    Thanks

    daleyrocks (5d22c0)

  10. Silly journalists. If they wanted to make sure no one actually read their writing, they could have published it in the LAT.

    ras (20bd5b)

  11. “I forward one of your private e-mails to me to Instapundit with the intent that he publish it and embarrass you. Should he?”

    Good question. I would say no, but it begs the question of why someone in the group would have sent the thread to Kaus in the first place. A number of bloggers do make it practice to incorporate emails in their posts and regular readers are aware of that practice. Unsuspecting or first time readers venting over something are usually the ones who fall victim to the practice. Mike Adams at Townhall is a blogger who regularly incorporates email into his columns.

    With respect to the leak to the outside of the group, I think it is more an issue of trust and with a group of 300 that’s a pretty tough thing to manage. Speculating now, but I would think the intention would have been for Kaus to publish the thread.

    daleyrocks (5d22c0)

  12. But perhaps Patterico is suggesting that we all need to be more careful in what we consider to be our private communications?

    daleyrocks (5d22c0)

  13. I disagree that this is at all like the Palin e-mail issue. Every person on this list was allowed to be there, and “off the record” isn’t an absolute. Journalists aren’t bound like a lawyer is by client privilege.

    Unless the list was accessed by someone how had hacked one of the member e-mails, I think this is merely a fine lesson that you should be mindful of anything you send to anyone.

    Scott Jacobs (90ff96)

  14. Silly journalists. If they wanted to make sure no one actually read their writing, they could have published it in the LAT.
    Comment by ras — 3/26/2009 @ 9:44 pm

    Priceless!!!

    Regarding the Instapundit hypothetical… If he thinks it’s worthy, it would be tacky but ethical (IMO) to go ahead and publish. A personal email should give greater pause than an email list though. The leaker in this case was wrong to do it, but when you have a large list (hundreds?) like this, somebody is going to give up the info once the existence is known. Once the first leak came out, the rest was kind of inevitable and I don’t see anything wrong with Kaus publishing.

    Stashiu3 (460dc1)

  15. It would be deliciously ironic to see journalists hyperventilate about someone publicizing /leaking their confidential memos.

    Perfect Sense (0922fa)

  16. Perfect Sense – Leaks which embarrass the left are wrong, wrong, wrong! Leaks which embarrass the right are patriotic, correct, moral, and the duty of every American citizen. Dude, get with the program!

    daleyrocks (5d22c0)

  17. “Expectation of privacy” is a phrase originating out of the Fourth Amendment, and it involves privacy from government intrusion.

    There is no analogue in private relationships.

    WLS Shipwrecked (f6941a)

  18. daleyrocks,

    You’re absolutely right and I condemn myself thoroughly and completely. Please allow me to retract everything I said about it being okay.

    On second third thought, I agree with Perfect Sense… pass the popcorn please!
    😀

    Stashiu3 (460dc1)

  19. WLS Shipwrecked – Good to see you. You haven’t been around much lately.

    daleyrocks (5d22c0)

  20. I’ll back-up daley on this, in that, people who feel no reservations about revealing the National-Security secrets of their government, don’t have a lot of standing about the sanctity of discussions in a “private” group.

    AD - RtR/OS (f1de20)

  21. Somewhere Keith Olbermann gazes out a window, looking at nothing, a single tear rolling down his cheek…

    Jim Treacher (796deb)

  22. God, and on that happy note, I’m going to bed to dream of weeping Olbermanns…

    Scott Jacobs (90ff96)

  23. Is it possible that this was an intentional leak of phony material in order to give a false impression of the type of conversation that happens on Journolist?

    Mark1971 (888585)

  24. If so, someone just opened themselves up to a huge freaking pile of Libel suits…

    Scott Jacobs (90ff96)

  25. There’s nothing private about JournoList. It’s a website owned by Google, Inc. If you type stuff into Google’s website (Gmail, JournoList, etc.) , don’t be surprised if it shows up anywhere on the Internet.

    dfp21 (d4f8b4)

  26. Mark1971 – If that is the case, I am quite certain that the JournoList will inform us about the “correct” nature of their communications.

    JD (e54d51)

  27. I would call it Game, Set, Match.

    Kaus not only showed them effective journalism, he outed them for the pansy gossips they are.

    lonetown (d7ec3b)

  28. “And (as I have said before), as long as every journalist on the list is already identified as a openly left-leaning writer (like Eric Alterman, for example) I don’t see the list as Dangerous or Evil.”

    It would be ‘Dangerous or Evil’ (in caps) for non-leftists to be on discussion lists with leftists? Odd.

    imdw (28e560)

  29. “Kaus not only showed them effective journalism, he outed them for the pansy gossips they are.”

    And that’s the only ‘privacy’ one can see here. I think there ought to be space in society where people can engage in this level of discussion. An it would be silly to say that this space can’t exist in our digital medium. Ie, this ‘don’t type it into google’ junk. This doesn’t involve the law or lawsuits, just how we understand the behavior that has now been exposed. It’s gossip, of the sort all people engage in, and the sort I’d say people have to engage in to be well-rounded individuals.

    imdw (de7003)

  30. imdw, I think the damage comes when supposedly non-partisan journalists are outed as conspiring to perform message control. While it wouldn’t damage their reputation inside the newsroom, it decreases the reliability of the news business to the general public… if such a thing is possible.

    Hadlowe (95362d)

  31. Kaus and Slate are legally in the clear, I’d think. I do think Kaus should have called Marty Peretz and allow him the opportunity to rebut the allegation he’s a “crazy-ass racist.”

    Aron (66b9c0)

  32. Wait, journalists are complaining about someone leaking something anonymously?

    HAHAHAHAHAHAHHAHAHAHAHAH, that’s some rich, German chocolate cake grade nuance there

    Techie (9c008e)

  33. First they all wanted to be Woodwards and Bernsteins. Now, they’re Deep Throats. (ooh, there’s a double entrendre in there. I’m gonna let it be.)

    bob (2e7207)

  34. Excuse me, concerning ‘privacy’, but these are the same piranhas who would leak highly classified government secrets to hurt this country’s national security (assuming a repub was President) in a heartbeat. I think leaking a conspiratorial elist group’s communications doesn’t even fit in the same ballpark as those egregious breaches. Besides journalistic ethics is an oxymoron as anyone who has dealt with those liberals has noted. Moreover, liberals don’t believe in such antiquated conservative ideas as morality, ethics, etc. Everything is relative even ‘privacy’ expectations. If it feels right do it, so some members felt right divulging the list, so they did it.

    eaglewingz08 (e40a12)

  35. Unprincipled people (and there are some in the lefty 300) still have an expectation that their fellows will keep confidences. Having said that the content of the Kaus post reveals most of them to be exactly the sort of unserious and, well, silly folks I had always assumed them to be from their writings.

    glenn (fcbc78)

  36. […] Patterico doesn’t disagree with me, but it’s been 54 minutes and he hasn’t responded to my post.  Just sayin’. Posted by Dan Collins @ 12:43 pm | Trackback Share […]

    JournoList on Twitter [Dan Collins] (7a2640)

  37. Sunlight is the best disenfectant, is it not? Talk about being hoisted on their own petards.

    Dmac (49b16c)

  38. An expectation of privacy in a List of journalists?

    I would think that shows either an too much naivity or too little intelligence

    Dan Kauffman (ce5245)

  39. BTW, some journos like Bradley have always maintained that the chimera of anonymous sourcing should end immediately. The reasons underlying that type of reporting have been completely overrun via the substitution of extreme reportorial biases disguised as “sources say…” Just another reason why the majority of the public doesn’t trust the MSM these days.

    Dmac (49b16c)

  40. Any prediction on how long it takes for a new libtard circle jerk to form?

    SPARTA!

    daleyrocks (5d22c0)

  41. Dmac,
    Clark Hoyt had a good NYT column on the indefensible use of anonymous sources for the trivial, mundane and silly.

    A recent article about The Washington Post’s handling of the “Doonesbury” comic strip said sources at The Post asked not to be identified “for fear of appearing to embarrass a colleague.” That amused Frank Herron of Winchester, Mass. “It’s nice to see that journalists still have feelings and are sensitive to the feelings of others,” he said.

    David Ehrenstein also wrote a revealing piece about the evils of anonymous sourcing — period.

    Brother Bradley J. Fikes, C.O.R. (0ea407)

  42. I remember that column, Bradley – but I hold no brief for the NYT, particularly after their disgusting and slime – filled “news story” about the alleged affair between the lobbyist and McCain. Filled with nothing but innuendo and “anonymous sources,” it proved that the NYT has learned nothing from it’s own egregious errors. They can’t sink fast enough into the La Brea Tar Pits from my viewpoint (although my wife will miss the crosswords).

    “Any prediction on how long it takes for a new libtard circle jerk to form?”

    Is this question meant to be rhetorical?

    Dmac (49b16c)

  43. You’re just talking about the morality of all this, I assume? Legally, you say something to somebody else, anybody else, and it’s not “private” any more if the other person decides to pass it on. There are a few exceptions, should you have an explicit contractual guarantee (accompanied, of course, by adequate compensation) to maintain the secrecy of some piece of information, but I’m not aware of any general “privacy interest” which is inherent in declaring a conversation to be “off the record.”

    I mean, “off the record” is simply not a binding agreement, even if the reporter (or other correspondent) agrees to your request. The #1 advice I’ve always heard given to any new policy/government employee regarding interactions with the press is: “NOTHING is ‘off the record.'” If you say it to a reporter, you should assume that it will show up on the front page of the NY Times one day.

    Even from the purely moral standpoint, I don’t have a lot of sympathy for the notion that any of these folks’ “privacy” has been invaded in any way, shape, or form. These aren’t family members or close friends or even Lodge members. They don’t work for the same company. They don’t share any common duty of loyalty to some person.

    We would understandably be hurt if a good friend violated our trust by telling others something he had learned from us in confidence. But that hurt stems from betrayal by a friend, somebody who has a social duty of loyalty to us at some level. What loyalty does one have any right to expect from a more-or-less random group of fairly distant professional acquaintances?

    There’s no “privacy” involved here, sorry.

    PatHMV (13de4f)

  44. The members of JournoList would be the people most likely to publish private conversations and communications, whether legally obtained or not, between business or government people with whom they disagreed. I have no doubt that a majority of them would make up part or all of these communications if they felt it improved their case. I therefore contend that these propagandists have no and deserve no privacy rights. So far as I’m concerned no “journalist” is ever off the record and everything they say under any circumstances is fair game. Sauce for the goose and all that…

    Ken Hahn (902320)

  45. I’ve been subject to the insider trading rules and later fair disclosure rules of the SEC for more than 25 years handling material nonpublic information and communicating with investors, regulators and others. It’s different, but related. Speaking for myself, you develop a sense of what is permitted to be said in front of different audiences and it better be the same fucking message. I can’t give out ptojections to one investor and ask him to keep them to himself, but not share the same onformation with others. Of course I could, but then I might wind up in the slammer with all my assets forfeited, etc. Like I said, it different, but related. There are laws and rules governing my conduct. There aren’t for the JournOlists, except for perhaps some nonenforced code of ethics.

    daleyrocks (5d22c0)

  46. If you can back trace a story that is both widely disseminated in the media following discussions on JournoList and based not on facts, but on spin and/or the dislike of certain list members for a person, as with the Marty Peretz thread or the earlier claims of anti-Semitism against Ann Althouse by list members, then the privacy/confidentiality claims pretty much go out the window.

    In that case, you’re dealing with a borderline conspiracy — borderline because they haven’t crossed into discussions of outright libel or slander that later make it into mainstream press stories — that throws away all claims of privacy. If multiple publications are working out next week’s talking points and story lines on JournoList this week, and those stories are based on opinion and conjecture rather than facts, the people there shouldn’t expect to have much grounds to keep those on-line conversations private (though my guess is at least a few of them have already found a new super-duper secret digital clubhouse to talk amongst themselves now that their old one’s been found out).

    John (692c5c)

  47. John – Tom Maguire at Just One Minute has done a few stories along the lines you suggest recently and in the past.

    daleyrocks (5d22c0)

  48. Live by the leak, die by the leak. Let them eat the yellow journalism cake…just desserts. [And AD, I implore you to refrain from stepping on this wordplay misspelling of just deserts like the Deborah-Debra bidness.]

    allan (3255e0)

  49. There is more outrage over this then when BSD infected Public Officials handed over state secrets to the NYT and WaPo.

    Jimminy'cricket (637168)

  50. “Any prediction on how long it takes for a new libtard circle jerk to form?”

    Trick ?

    It has been 24×7 since November 5, 2000.

    Jimminy'cricket (637168)

  51. Comment by allan — 3/27/2009 @ 8:17 am

    I’m sorry, allan. I’m confused:
    Is your intention to make a “Marie Antoninette” analogy,
    or do you want them to wander in the desert for fourty years?

    AD - RtR/OS (0053b8)

  52. I tend to agree with tjwilliams. However, I also recognize that people, being human, will tend to vent in what they believe is a “safe” forum.

    In science fiction fandom, the old saying is, “never write in a fanzine anything you don’t want to see on the front page of the New York Times some morning”. I often point out this applies to mailing lists and other online forums, even if you’ve set their access options to “private”. Information leaks. Period.

    In an ideal world, people would respect confidences. In a less than ideal world, people have to give some reasonable thought to what expectations of privacy someone may have had when he made that unfortunate remark.

    Karl Lembke (ff486c)

  53. One person can keep a secret. Two people cannot keep a secret. (Old Chinese saying.)

    nk (c90ef8)

  54. Another point regarding expectation of privacy: the more in the public eye a person is, the more that person has to live by the dicta:
    “There’s no such thing as a dead mike”
    “All cameras are live”
    and
    “Everything is being recorded by someone.”

    In an age of cell phone video and recording devices small enough to get lost in a handful of change, the only thing that protects most people’s privacy is that most other people don’t care.

    Edwin Meeks can post something offensive on a mailing list, and no one cares. But if Dan Rather posts the same thing, lots of people will be interested.

    Karl Lembke (ff486c)

  55. typo: And what he was revealing

    Did you mean “what he SAID was revealing”?

    Also: Tom Clancy once wrote that the chance of a secret getting out is inverse to the square of the number of people who know it. With 300 people on the list, there is almost zero chance that a thread wouldn’t leak. Why, they would ALL have to be hardline leftists in order to keep the list contents a secret. With 300 members, if even 295 aren’t hardline partisan ideologues, the list contents are vulnerable.

    Daryl Herbert (b65640)

  56. You missed the yellowcake one…I was soooo good at hiding Easter eggs.

    allan (3255e0)

  57. Well, except for the fact that “yellow journalism” is a recognized concept, and the eating of “yellowcake” (with the exception of Joe Wilson) is not.

    AD - RtR/OS (0053b8)

  58. Here’s an interesting thought about the “expectation of privacy” idea: Those who regularly use leaks for broadcast understand there is virtually no privacy. As a result, those people are experienced enough to know nothing privately broadcast can be expected to stay private. They are experienced enough to be naive if they expect privacy in anything they post anywhere.

    Any reasonable person with their experience in leakage (sorry, girls, for the allusion) can expect their own words to not be leaked eventually. Thus, no expectation of privacy.

    John Hitchcock (fb941d)

  59. I’m waiting for NYT story being outraged at this leaking.

    National security isn’t important, but journalists, whether in collusion or not, are our most precious resource.

    Hawkins (3d318d)

  60. Times are so tough right now in the newspaper business that, tomorrow, Brenda Starr will be laid off.

    Official Internet Data Office (3df6eb)

  61. I know of one reporter on the list who isn’t openly left leaning, although a quick read would clue the reader in to the true leanings of the writer. But by title/job position– not openly left.

    Anybody who provides information “on background” to a reporter is telling the reporter something they most likely had promised not to tell anybody. Same difference.

    MayBee (86cc96)

  62. It was kind of surprising that the members of the list (those whose emails MK posted) actually performed beneath my expectations. While it’s pretty clear that this site has been used as a way to get everyone’s story straight before going forward with the new weekly meme, a sounding board to make up for the dearth of journalism skills of the participants, I had no idea it was also the equivilant of a junior high girls clique.

    No wonder they wanted to keep it secret.

    harkin (f9df5a)

  63. Of all people, the list journos should have guessed that someone would leak some day! I wonder why Kaus did it. I guess I’d consider it a private betrayal but IMO doesn’t rise to the level of the NYT printing leaked security documents.

    The people on the list were revealed as completely juvenile, but I guess life is high school. We don’t get smarter, we just get older.

    Patricia (2183bb)


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