Saturday, January 13, 2007

UI President Search Held Hostage Day 58 - Jan. 13

Jan. 13, 8:30 a.m., 9:30 a.m., 1:00 p.m.

Four in a row. For the fourth day in a row the Press-Citizen is the source of stories and commentary about the UI President Search, the back story on the "new VP position," why (as Black Elk might have put it) "their phobia of openness is like a disease with them," and speculation regarding why former UI President Skorton's e-mails have been destroyed, why Gartner is seemingly unconcerned about the destruction of Skorton's emails but thinks it's necessary to be hip deep in investigating the "security breach" regarding John Colloton's emails -- for the protection of which Colloton has now hired one of Iowa's most distinguished lawyers.

All in all, not bad for a single Saturday paper.

Incidentally, I'm sorry if you checked back yesterday only to find the blog entry hadn't been expanded as promised in the morning. For much of the day it appeared that my laptop had died. Fortunately, as it turned out, reports of its death were -- like those regarding Mark Twain, as he put it -- "greatly exaggerated." A new power cord did the trick. But by then (I just discovered this morning) what I thought the blog host had accepted in the evening wasn't there. Anyhow, it's there now, so if you are a compulsive follower of this saga you might want to look at it.

Today I'm also going to put this blog entry up first with the links to the four items from the paper, linked below, and then add more of my own commentary later, as a way of getting the basic material to you as soon as possible.

"Curiouser and Curiouser"

Here in our own little Wonderland on the banks of the Iowa River we, like Alice, continue to find things getting, as she put it, "curiouser and curiouser."

Back in my Washington days I was taught two principles regarding secrecy.
(1) If you want to keep something a secret don't put it in a classified document. It's the classified stuff that gets leaked. It's the effort to keep something secret that draws attention to it. If you want to make sure something will be ignored, overlooked and never read, put it in a public document and make it available.
(2) If the secret stuff is personally embarrassing announce it to the world yourself, and the earlier the better. Tell the whole story; don't leave juicy tidbits to dribble out over time. An apology is always nice. If it's worse, you might even try a tear or two and beg for forgiveness. If it's even worse than that get a member of the clergy to stand by you during your announcement, explain how you've prayed on the matter, and have now been called by God to take up the ministry.

What is it best you not do? It's best you not fight Freedom of Information Act requests. It's best you not launch investigations of "security breaches." It's best you not hire top lawyers to defend you. This is even more true if your story is but a part of a bigger story, or group of stories, that will keep yours alive long after it migh otherwise have faded.

Why are defensive postures self-defeating? Because it's like tempting security agencies by encrypting all your e-mails, or if you're authorized to use federal classifications, tempting reporters by classifying everything "SECRET." It just draws attention, heightens suspicions (especially among reporters), and keeps your derelictions in the news, day after day.

Of course, defensive tactics like these become multiples more self-destructive when you know that the media already has the very material you're trying to keep secret!

So why are John Colloton, Michael Gartner, and custodians of University documents -- bright, experienced individuals all -- violating virtually all of these really very basic public relations principles? Whatever their reasons may be, the consequence of their actions is that a lot of folks are going to believe -- and not all together irrationally -- "THEY MUST HAVE SOMETHING REALLY BIG TO HIDE!"

Issues Involved in Publication of Anonymous-Source E-mail

The Press-Citizen has reported that an unknown source has provided the paper a number of communications purporting to be from John Colloton to Michael Gartner, David Skorton and others "on topics ranging from the UI presidential search to the Wellmark contract controversy of 2004 and 2005 as well as to UI and University Hospitals' organizational structure."

(As always, what follows is not intended as, and is not, "legal advice." I am no longer practicing law, and even if I were I would have done some serious legal research first, have a client, and not be presenting legal opinions in blogs. See a practicing lawyer if you need legal advice. Speaking of which, neither the Press-Citizen nor John Colloton have any need to supplement their first class legal representation with the likes of my off-the-top-of-my-head ramblings. So the discussion that follows is just for you and me.)

There are essentially three issues.

(1) Journalistic Ethics. The paper has indicated that it wants to authenticate what it has as being, in fact, what it appears to be: e-mails authored by John Colloton. Apparently it is aware that, in this digital age, it would be relatively easy for an individual to compose and print out a fake e-mail that would appear to have come from someone else. It must also be aware that the very first injunction in the Society of Professional Journalists' Code of Ethics is, "Journalists should: — Test the accuracy of information from all sources and exercise care to avoid inadvertent error." So that is, apparently, what it's trying to do.

(2) Publishing illegally obtained material. There is an issue -- though one almost always resolved in favor of the media -- regarding the publication of material which was (a) obtained initially, by the person who got it, in violation of some law, (b) then given to the media, which was in no way involved in that initial acquisition, and (c) subsequently published. It may be the case (though there is no way of knowing) that whoever it was who gained access to these e-mails of Colloton's (if such they be) did so in violation of some federal or state law, or University regulation.

There are laws prohibiting the "interception" of e-mails (what we used to call, with regard to phone conversations, "wiretapping"). Since getting e-mails off of a hard drive is not "interception," there are also laws regarding unauthorized access to "stored" messages. A media organization or reporter that has done no more than receive illegally obtained electronic material has not, of course, violated those laws. However, there is also a prohibition against the disclosure of such material knowing it to have been illegally obtained. [18 U.S.C. Sec. 2511(1)(a) (prohibiting the willfull interception of communications) and subsection (c) (prohibiting willfull disclosure of the contents, knowing it was obtained illegally).]

A Supreme Court case involving similar facts was decided in favor of the media. It happened to involve the comparable law regarding intercepted phone conversations. A radio station broadcast from a tape provided to the station by a third party that contained an illegally recorded cell phone conversation. The Court concluded that the media's First Amendment rights trump the statute (and the plaintiff's privacy rights) if the media gets the information lawfully (even though its source got it illegally), and it involves matters of "public significance." Bartnicki v. Vopper, 532 U.S. 514 (2001). The Court's decision in the "Pentagon Papers" case is analogous and consistent, New York Times v. United States, 403 U.S. 713 (1971), as are Landmark Communications v. Virginia, 435 U.S. 829 (1978) and Smith v. Daily Mail, 443 U.S. 97 (1979). [Again, please note that this is not a "legal opinion" from me regarding the Colloton emails.]

(3) Defamation, false light, and "public disclosure of private facts." These are three concerns (possible bases for law suits) of which publications must be conscious. None would likely be applicable if the e-mails are genuine. "Truth" is a defense to a charge of defamation, and if the e-mails were in fact written by Colloton and deal with subjects of public importance they wouldn't contain "private facts." But what if the paper goes ahead and publishes them and it turns out they are a fake? The Press-Citizen would probably be more concerned about the stain on its reputation for journalistic professionalism than any lawsuit.

But if there was a defamation suit, Colloton, given his present and past positions, general reputation, and involvement in the issues, would presumably be considered a "public figure." Thus, he would have the burden of proving "actual malice." That doesn't mean "malice" in the usual sense but, rather, that the Press-Citizen knew that the e-mails were not a product of Colloton's, or exhibited "reckless disregard" in its effort to ascertain whether they were or were not, and went ahead and published anyway.

There are three answers: (a) the paper did make a bona fide effort to verify, by asking for the originals as "public records, in order that they might compare them with what they have, and was rebuffed by those who would be plaintiffs, (b) the more ferocious the University, Gartner and Colloton become in their defensive posturing, the more reasonable it would be to assume that what the paper has is genuine, and (c) so long as the paper does not assert any questionable facts from the contents of the e-mails as true facts, and it does not assert that the emails are, in fact, from Colloton, it would be true to say "we got these emails, we don't know from whom, and we do not know if they were in fact written by Colloton. We just reproduce them here so you can judge them for yourself."

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[Note: If you're new to this blog, and interested in the whole UI President Search story, these blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006. For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006. My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006. And the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References".]

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Media Stories and Commentary

Editorial, "Flesh Out the Details on UI's New VP Position," Iowa City Press-Citizen, January 13, 2007

Jim Lewers, "Keep 'Deciders' Responsible," Iowa City Press-Citizen, January 13, 2007

Brian Morelli, "UI: Skorton's E-mails Were Destroyed; Computer Was Set Up to Delete Messages," Iowa City Press-Citizen, January 13, 2007

Brian Morelli, "Colloton Working With Attorney to Protect Records; McCormick One of State's Top Lawyers," Iowa City Press-Citizen, January 13, 2007
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1 comment:

John Neff said...

Proof by demonstration that the administration of the UI is decentralized. If anyone paid an attention to orders from the top the place would be a pile of rubble.