When Politicians Attack the Media: “A case of what happens when the press becomes fair game”

From a Washington Post Voices Across America column by William H. Freivogel headlined “This Trumpish attack on the media is ridiculous, yes, but serious nonetheless”:

William H. Freivogel, a former St. Louis Post-Dispatch editor, is a journalism professor at Southern Illinois University and a member of the Missouri Bar.

Last fall, Josh Renaud, a reporter for the St. Louis Post-Dispatch (where I once worked), was aggregating Missouri state data on teachers to identify who was unlicensed. As he worked, he looked at the HTML code for the publicly available webpages — a task customarily accomplished with a couple of clicks to reveal the HyperText Markup Language used to construct the pages. Renaud noticed that the code included nine-digit numbers. He surmised, correctly, that these were Social Security numbers.

Rather than rushing to publish a scoop about the glaring privacy vulnerability for more than 100,000 Missouri public-school teachers, Renaud and the Post-Dispatch did the right thing. They alerted state education officials, giving them time to fix the problem before the paper disclosed it.

Initially, Education Commissioner Margie Vandeven was going to thank Renaud (“We are grateful to the member of the media who brought this to the state’s attention,” read a proposed statement, according to a document the Post-Dispatch later obtained through a Sunshine Law request). But the state’s Republican governor, Mike Parson, intervened.

At an Oct. 14 news conference, with the head of the Missouri State Highway Patrol standing by, Parson accused Renaud and the Post-Dispatch of “hacking” a state website and announced a criminal investigation.

Parson’s statement was extraordinary, most obviously because the First Amendment does not permit the government to jail reporters for disclosing publicly available information. The U.S. Supreme Court has repeatedly affirmed the right to publish truthful information.

But Parson’s announcement was also remarkable because it indicated that the governor doesn’t understand the first thing about how computers (or websites) work.

Mark Sableman, a media lawyer in St. Louis, tells me that not only is HTML is “not hidden in any way. By its nature it is public” and “readily accessible for anyone to see without any locks, keys, passwords or other access restrictions.” That fact was recognized in 2006 by a federal judge in Field v. Google Inc.

The key issue in application of the federal hacking law — the Computer Fraud and Abuse Act — is whether computer access was “unauthorized” or “exceeding authorized access.” The Missouri law against computer data tampering, cited by Parson, similarly centers on access “without authorization.”

Last spring, the Supreme Court refused to apply the federal hacking law broadly to a Georgia police sergeant who improperly received $5,000 for running a license plate check for a friend who was trying to determine if a woman he had met was an undercover officer.

Justice Amy Coney Barrett, in delivering the ruling, wrote that applying the law to such a case would attach criminal penalties to a “breathtaking amount of commonplace computer activity” — such as employees using work computers for personal emails.

Barrett cited an amicus brief filed by the Reporters Committee for Freedom of the Press warning that a broad interpretation of the hacking law could hinder reporting based on whistleblowers and data analysis. The brief said such an interpretation would be “especially concerning in the context of the press, where selective enforcement could be motivated by a government official’s disagreement or dislike of the substance of the journalism.”

That seems to be precisely the case with Parson, who shares with his political ally Donald Trump an antipathy for the press. The governor clearly didn’t like the Post-Dispatch’s disclosing that Missouri hadn’t protected teachers’ private data. He even ignored the FBI, which told the state the incident was “not an actual network intrusion.”

Parson’s crusade may seem like the comical folly of a thin-skinned, technologically clueless politician. But it is more serious than that. It’s unconstitutional to jail a journalist for reporting public information. The case is a sign of what happens when the press becomes fair game as, in Trump’s words, the “enemy of the people.”

The Highway Patrol finished its investigation in late December and turned it over to Cole County Prosecuting Attorney Locke Thompson, a Republican who previously worked in the state attorney general’s office.

Parson said at a Dec. 29 news conference that he expects Thompson to pursue the case: “If somebody picks your lock on your house — for whatever reason, it’s not a good lock, it’s a cheap lock or whatever problem you might have — they do not have the right to go into your house and take anything that belongs to you.”

A better analogy would be a good Samaritan walking past your house and noticing the door is open, with valuable possessions in view, who then warns you about the danger.

The danger here is a public official retaliating against a reporter for disclosing the truth.

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