Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Sunday, February 12, 2012

The Anxiety of Unknown Knowns

I just returned from a three-day-long conference sponsored by the American Bar Association Forum on Communications Law. I am honored to serve on the Forum's governing board and always look forward to getting together with this group of extraordinarily bright, well-informed, hard-working, genial lawyers. The discussions are consistently excellent and thought provoking.

Over the weekend, we pondered numerous questions. What are the cutting edge developments in libel, privacy, newsgathering, Internet law, advertising law, and e-discovery? What actions (if any) can the government take with respect to Wikileaks' sharing of confidential government documents--consistent with the protections of the First Amendment? What lessons can we take from the historic lawsuit that Food Lion brought against ABC over its reporting of questionable food handling practices? How can newspapers like the New York Times survive in a digital news environment?

The pace and significance of technological change shaped and informed every conversation. So, for example, our discussion of FTC enforcement actions with respect to social media privacy policies quickly revealed that conventional notions borrowed from contract law and consumer protection law seemed inadequate. Those policies invite consideration, perhaps even radical reconsideration, of the normative dimensions of privacy, self-definition, and community. For those who study, and hope to influence, the development of the law in these areas the challenges are overwhelming. Indeed, trying to craft legal principles sufficient to the current communications environment is rather like trying to bail water out of Niagara Falls: you can't keep up, and almost feel silly trying.

I opened today's New York Times only to discover another example. In an article published today, Adam Liptak conducted a characteristically thoughtful analysis of the government effort to identify and prosecute those who leak secret information. Over the years, such efforts have given rise to struggles between the media, who wish to protect their confidential sources, and the government, who wants to know who broke confidence. Adam recounts an eerie conversation between Lucy Daglish, of the Reporter's Committee for Freedom of the Press, and an unnamed national security representative. In essence, the representative assured Lucy that she would no longer have to worry about government subpoenas issued to reporters to find out who their sources are.

We already know, he told her.