Interview with David McCraw: Mass Media Law and the Future of the Freedom to Access Information
David McCraw is the Assistant General Counsel for the New York Times, and an Adjunct Professor at New York University School of Law.
Q: How did you get into media law?
A: I was a journalism major in undergraduate, and I worked at newspapers after I graduated. I was a journalism professor before I went to law school. Then I went to law school and after I clerked, I worked at a firm that did a little media law and from there I was able to go the Daily News. I was at the Daily News for two years, and I have been at the New York Times since then.
Q: How has mass media law has evolved since you have been at the New York Times?
A: One of the interesting things is how little it’s evolved in some ways. For whatever reason the courts have been applying in many cases the very same principles they applied when media was all print publication.
I think that the better question is where we’re headed, because I’m not sure that the status quo is going to maintain itself. Congress sort of took care of the big issues of posting online and linking. The way it’s worked out is that there is no liability for third party content, and as a matter of common law there is no liability for links. So the two things that were really evolutionary about internet publishing—that your readers could now write to you and that you could create this incredible web have largely been taken care of in the law. Whether those things can hold up, I don’t know, because there is a lot of pressure building up surrounding the unfairness of Section 230 [of the Communications Decency Act]. The fact that you can link to defamatory content or stolen content and not have any liability strikes people as wrong, so I think those are going to be issues.
I think the second issue that is going to come up is that media outlets are subjected to jurisdiction in so many places. It has not been the big issue people thought it was going to be, but at some point I think jurisdiction is going to come back into play and the question will be what are the rules going to be there.
The third issue looking forward is the right to be forgotten. The amazing thing about the internet is the breadth of its content—its reach back through time and across so many different voices. The courts in the US have maintained that we don’t have to take down things that were legal at the time they were published. I’m not sure that there is really a popular will to support that in the long run. When I first came to the Times 11 years ago it was not an issue that we had all of this stuff up. Then about 2005-2006 we had search-engine optimization and suddenly our stories rose to the top and the number of people wanting things taken down just skyrocketed.
Q: How do you see Courts addressing this issue?
A: There are a couple ways they could go. They could hold the line—this is the brave new world of privacy. If it was accurate at the time it was published and didn’t violate any laws, the fact that it remains through time is not a problem.
I think that it’s possible that what you will see are some alterations in the statute of limitations. More likely they might address this through notice—after “x” number of years if there is little public interest in keeping the material online and there is only a privacy interest then there should be an obligation to take it down. How that would be sorted out if you chose not to take it down would be complicated, but I could see them doing one of those two things—changing the statute of limitations or allowing for a privacy claim in conjunction with the statute of limitations.
Q: I know that you were involved in a major information access struggle that resulted in a Pulitzer-winning military analyst story. Will you talk about where you think freedom of information is headed?
A: I think that the landscape has changed, because everybody can be a publisher. At one point newspapers and television broadcasters were seen as gatekeepers—to get to the public you had to go through them, but you don’t have to do that anymore. I think that one result of things like WikiLeaks is that it’s much harder now for the government to enforce secrecy or to depend on a responsible answer from mainstream media. If things are available they are going to be posted. What the outcome of that is for the New York Times and mainstream media is that in some ways they become more important. They become the curator of what’s there, they help people give meaning to it, and they help people understand what’s important and what’s not. I fear that a lot of what’s going to happen is not going to be very positive. I think the government is going to redouble their efforts to try and keep secrets, and at some point people become cynical about secrecy and feel that it’s being used for political reasons. Eventually, I think someone is going to publish something that actually causes damage and that will likely lead congress to redouble their efforts to punish people for publishing secrets.
I think most of the leaking, at least in terms of Snowden and WikiLeaks, has been positive. I think we found out things we should have known. I think WikiLeaks caused some embarrassment to the US government, but to me that isn’t of high enough value to say that this type of information is a problem, and Snowden has raised people’s awareness of an inappropriate level of spying on citizens that I also think was positive.
Q: What do you think the future is in terms of the New York Times’ involvement in these information leaks?
A: I think our role will largely be the same. We want to be a value added publisher. We want people to come to us knowing that we will make sense of what these disclosures mean historically and politically. I think it’s inevitable that there will be much more postings of this type online, but I think that we can bring some knowledge to these postings that others may not have. I don’t think it’s likely that the government will be more open as a result. I think their tendency is to react just the opposite way.
Q: What are some of the concerns that the New York Times considers when faced with a decision of whether or not to publish certain types of secret documents or leaked information?
A: It used to be concerns about protections of the source. We still have that concern to a certain degree so that is one of the discussions I’m likely to have. Are we relying on a confidential source? What kinds of promises have we made? How are we going to protect the source? For whatever reason that has become less of an issue, because you have things like Snowden and WikiLeaks where by the time we got the information the sources were clear.
The second question I consider is will we face prosecution? Are we triggering the Espionage Act or the Official Secrets Act? With the Espionage Act there has never been a prosecution of a publisher. I encourage people to then think about if are we doing anything that would make prosecution more likely.
The harder call is with the foreign espionage acts and this goes back to the first question—are we subject to those laws? In some places they don’t have the same first amendment commitments, so I think about whether we need to be concerned about that. My role is to look through and see if there is anything in here that would be considered a foreign secret, and if so, what do those countries have to say about that? So in that way I’m engaged more in a discussion of policy. I guess in the end then what I’m saying is my role is to help provide judgment more so than legal analysis—what are the risks here and what is the public interest, and I think that as long as what we publish is perceived broadly as in the public interest no mainstream publishers are going to face prosecution.
Elizabeth Klein is a J.D. candidate, ’15, at the NYU School of Law.