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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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March 21, 2005

Bloggers are Journalists: The Down Side

Posted by Ernest Miller

I've been doing a lot of thinking about the Apple v. Does case and have already written a few posts and will be writing more in the future. I'm not a big fan of the "are bloggers journalists?" debate, particularly when it comes to the government deciding who is a journalist and who isn't a journalist. The only test for "press shield" laws as far as I'm concerned is whether information is gathered and then publicly distributed, or there is an intent to distribute (A Proper Press Shield Test: Publication or Intent to Publish, Period). However, despite my obvious and definitive solution to the problem, the debate about bloggers and journalists rages on.

Many commentators, both bloggers and those in "main stream media," have made the argument that, of course, bloggers are or can be journalists. Well and good. I agree with this position. However, this may have unanticipated consequences.

Today on NevOn (via BoingBoing) I read of the harassment of a foreign blogger by US Immigration (Don't Say Blogger to US Immigration):

This sounds like an unbelievable story, but it happened to Canadian blogger Jeremy Wright last week.

As already reported on quite a few blogs, Jeremy was detained and interrogated by US Immigration when he arrived in New York last week for a meeting with McGraw-Hill [Note: Wright claims the meeting was not with McGraw-Hill] to discuss a great business opportunity for Jeremy in the area of blogging.

It appears that the immigration people simply did not believe that Jeremy could make a living as a blogger. And they gave him the third degree - including an humiliating strip search - as a result for some hours. And banned him from entering the US. [links in original]

Wright's original posts appear unavailable, but he has posted "The End of the Story":
I’m still not 100% sure what happened at Customs at the airport. Really, totally unsure. However at the very least I was denied entry and flagged for followup any other time I try to enter. As far as I can tell, I am not “banned” from entering. I’m not sure why the border guard said I was, threatened to throw me and jail and sieze my assets, etc.....

Anyways, I’m not going to New York. The company basically needed someone there this week, and the only way to get a Visa is through a fairly standard 2 week process. Which I understand, and I’m not mad about, it just means I’m not going.

What happened here? Well, I don't have any more information, but Wright's story reminded me of a journalist's story from May 2004, as recounted in Slate (I, Visa):
Last week a British reporter was detained by immigration officials and then expelled from the United States for traveling here without knowing that the visa rules had changed. More precisely, she didn't know that a decades-old unenforced rule was suddenly being enforced against friendly tourists long accustomed to entering the country without a visa at all. Elena Lappin, a freelance journalist from the United Kingdom (who has written for Slate), was stopped at Los Angeles International Airport, subjected to a body search, handcuffed, frog-marched through the airport, and then held in a cell at a detention center overnight—all because she dared travel to the United States without a special journalist visa. There has been a rule on the books since 1952 requiring foreign journalists to obtain special "I visas," but foreign journalists say it was invariably ignored by Immigration and Naturalization Service officials who required only that citizens of friendly countries apply for a visa waiver, an exemption allowing most residents of 27 enumerated countries to visit the United States for business or pleasure for up to 90 days without jumping through any INS hoops.

No more. When the INS was folded into the Department of Homeland Security in March 2003, the I-visa rule began to be enforced in earnest, sometimes, resulting in at least 15 journalists from friendly countries being forcibly detained, interrogated, fingerprinted, and held in cells overnight—with most denied access to phones, pens, lawyers, or their consular officials. Their friendly welcome at the detention center included lights that shone all night long and video surveillance of the entire cell, often including toilets. [links in original]

Read the whole thing for more on this travesty of freedom of speech.

Could this be what happened to Wright? Even if it isn't, wouldn't this be a nice tool to deny entry to foreign visitors who happen to be bloggers? "You're a blogger? That means you're a journalist, which means you need an 'I' Visa. Don't have one? Too bad."

When everyone is a journalist will everyone need an "I" Visa? Will U.S. bloggers face reciprocity? Perhaps we should change this "I" Visa nonsense instead.

Comments (6) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression


COMMENTS

1. James on March 21, 2005 09:30 PM writes...

If you're a blogger, and you want to call yourself a journalist, you'd better be willing to play by the same rules that journalists do. That means more rights, yes, but also more restrictions. I think this kind of thing highlights what the "bloggers-are-journalists" people ignore -- that there *is* a difference.

I think Wright retracted his posts because he didn't want this kind of nonsense to be brought up on his behalf.

Permalink to Comment

2. Heatsink on March 21, 2005 09:56 PM writes...

If that's what happened to Wright, then the U.S. makes even less sense than normal.

Just a week or so ago a U.S. judge ruled that bloggers weren't journalists during the Apple fiasco. So...if they're not journalists then how can the obscure I-Visa thing be held against them?

U.S. Legislation and the Dept of Homeland Security are a constant source of amusement for us here in Canada. Somehow the U.S. Government has managed to do the impossible: turn their humungous country into an island and sucessfully created the completely implausible situation of 'the world' against 'the U.S.'.

This is just the newest example in a never-ending gong-show of U.S. agencies' contradictory and illogical behavoir. It's gotten to the point that anytime I see a U.S. official in any capacity my mind turns to old re-runs on the Keystone cops.

Permalink to Comment

3. Ernest Miller on March 21, 2005 10:16 PM writes...

James,

I'm not really sure why the government should be in the business of credentialing journalists and determining who is or isn't a journalist. The point is not that bloggers should be held to the same standard across the board, of course they should be. The point is that the visa requirements for journalists are absurd, particularly in a country that treasures freedom of speech.

I hardly think that the way journalists have been treated by our immigration department is nonsense.

Permalink to Comment

4. Shawn King on March 22, 2005 02:48 AM writes...

"Just a week or so ago a U.S. judge ruled that bloggers weren't journalists during the Apple fiasco."

Not true. In fact, the judge *specifically* said he *wasn't* ruling that "bloggers aren't journalists".

Permalink to Comment

5. Shawn King on March 22, 2005 02:51 AM writes...

"If you're a blogger, and you want to call yourself a journalist, you'd better be willing to play by the same rules that journalists do."

Excellent point and one I've been trying to make myself. *Certain* bloggers seem to want to have all the "fun" of being a journalists without knowing what it entails or without accepting the responsibility that goes along with it.

It's a *lot* more than simply being able to type.

Permalink to Comment

6. Jack on March 23, 2005 02:29 AM writes...

""Just a week or so ago a U.S. judge ruled that bloggers weren't journalists during the Apple fiasco."

Not true. In fact, the judge *specifically* said he *wasn't* ruling that "bloggers aren't journalists"."


Oh, good then.. well, if they ARE, then the descision to force a blogger to reveal thier sources should be overturned.. and if they AREN'T, then the treatment of regular citizens to the spanish inquisition (aka; homeland-security type actions) is completely unfair and cruel.


So.. pick one and run with it - you can't have both.

Permalink to Comment


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