Asymmetrical Information

Glad to see you continue to express the amoral sense of ethics we readers have come to expect from you.

Hitchens is a shady, scumbag of a character. I don't know why the MSM ever gives him any airtime.

While it may not be standard, I do think that a publication has an ethical responsiblity to avoid publishing statements that appear as fact and are instead false, even if the statements are contained within an opinion piece.

If it's true that the postings do not accurately reflect Cole's views, and that Hitchens' piece implies that they do, and if Hitchens' were aware that they did not accurately portray Cole's opinions, then Hitchens would be in the wrong. That's several if's though.

I'll take your word for it on the ethics (although it seems somewhat slimy). But isn't at least good journalism for Hitchens to report the whole discussion, not just cherry pick bits out of the middle (assuming Cole is corrct about this)?

Two comments, two trolls?! You are getting popular.

Does this mean that the NY Times was unethical to publish information leaked to it by governmental insiders? That the Pentagon papers should never have been published? That Woodward and Bernstien should have gotten in touch with the White House and asked for permission to bring down the President?

Why yes, yes it does.

Assuming you have no idea how this whole watchdog thing works.

Soaringeagle and PoliticalCritic - Hitchens, whatever you think of him, did handle it correctly. Juan Cole is being a pouty baby about it. Having raised several children, I know a pouty baby when I see one.

Stop and think. What if he had published an article slamming Rove, that someone had leaked to him? Would you find that unethical?

"I'll take your word for it on the ethics (although it seems somewhat slimy). But isn't at least good journalism for Hitchens to report the whole discussion, not just cherry pick bits out of the middle (assuming Cole is corrct about this)?"

This practice, which in its slimiest form has recently become known as "Dowd-ification", is hardly new.

"While it may not be standard, I do think that a publication has an ethical responsiblity to avoid publishing statements that appear as fact and are instead false, even if the statements are contained within an opinion piece."

See "Dowd-ification" above.

"While it may not be standard, I do think that a publication has an ethical responsiblity to avoid publishing statements that appear as fact and are instead false, even if the statements are contained within an opinion piece."

How about in a quote from a politician, such as Nancy Reid or Harry Pelosi, or Howierd Dean? Imagine the possibilities!

The naivete of someone thinking that electronic text circulated to several people will remain confidential is striking. Whatever it says about human nature, if one does not wish the world to read something you have written, don't send it out into the eletronic ether, no matter what people have agreed to. People are probably better served by having forums open for the public to read, even if the circle of people who can add to the discussion is small, in that a forum that is open for the public to read is harder to dishonestly mischaracterize.

Andrew Sullivan has a particularly good analysis of the spat between Hitchens and Cole on his blog (now at Time.com). He says that Cole owes Hitchens an apology for calling him a drunk; Sullivan was present when Hitch filed the story and he says that Hitch was stone cold sober.

Ethics aside, what is the contemporary US legal stance on partial, "misleading" quotationsi, and is it highly askew from the ethics?

Of course, posting the entire non-partial message on a commerical/funded somehow site might start to trip on the supposed protected e-mail posting:

http://www.templetons.com/brad/copymyths.html

Of course, I'm not a lawyer and the above could be misinformation or dated.

Cole happens to wish less for damages than for apologies or whatnot, and the privileged distribution was (at least in his quoted complaint) for privacy -- not saving up for capitalizing commercially. But taking and publishing some rough draft of a novel would probably be protected... So, one wonders if there is a damages story to be had for Cole, and I can only assume any of you moonlighting as professional journalists know the full story on all these legal corners...

If Cole has a cause of action in law, it is not against Hitchins, but rather against Hitchins source.

In an mp3 analogy, I e-mail you a comment (represented as a spoken-recorded mp3) and you, without permission, give it or sell it to Slate and then Slate publishes this mp3. I really have no cause against Slate? Must I sing my opinion for it to be protected art?

Does this correlate with the RIAA having no recourse against me as a downloader, but having recourse against any uploaders of mp3s? Perhaps they are merely regulated under entirely differently notions? I'd certainly never accuse IP law with great philosophical coherence, but then I'd also never color myself clear on it all either.

This whole "third party" or "indirection out" seems a bit ethically more tricky than Jane presents. There is no transitive responsibility to the originator? I can surely see how this is convenient, but why is it true? If statements are property and journalism is paid for and not public domain, then the "criminal behavior" may be implicit in the very act of publishing itself. Aiding and abetting the damages incurred by premature rough draft revelations and such.

Perhaps the original sentiment of journalist ethics being oxymoron is more on the mark and we merely tolerate or trade the evils of exposure unrestricted? Perhaps there is just some more subtle but explicit out for "opinion" as property for the sake of public discourse, whistleblowing, or other discovery? Or is this some carte blanche out we give to "journalism" as property distribution (to garner said benefits)?

I don't get the argument, other than noting that is what journalists do. If a journalist received stolen property, he would be obliged to protect it and then return it, not use it. Why is stolen information different?

Tyler

Tyler: Because stolen property is nonfungible?

Many: The idea that journalists have an obligation to publish the entirety of the information at their disposal to insure context is absurd. They have an obligation to be fair and accurate--an obligation at which they frequently fail--not to be complete. Indeed, who would want to read such stories?

Jouralists have been free since the Pentagon Papers to publish classified national security documents that were stolen. Conversely, Cole is complaining that emails, protected by no laws of which I'm aware, may not be published?

Tyler -- that was precisely the argument and the observation, but with an attempt to tie it to the originally posed ethical question. If theft of rough drafts/e-mails is both a matter of standard practice and a part of journalistic ethics, then "journalistic ethics" is oxymoron. This does not seem to be Jane's opinion which murkily seems to be some kind of discovery-based lesser-of-two-evils argument. Her stance is also confusingly biased toward the rights of the journalist to decide with her exemptions being for non-revelation only if dramatic suffering might ensue rather than say biased to the rights of the property owner -- revealing only if one must to prevent larger problems.

What if Asymmetrical happened to be initially private, someone she foolishly trusted distilled just the gems, gave it to Slate for free and then Slate made tons of $$ (whatever Slate makes in a good week)? Suppose also, that Slate happened to get a good bargain from the thief (either by getting it for free or cheap compared to its eventual income from the work). Apparently, she'd not feel ethically wronged that some third party like Slate could make a mint off her labor without her consent and with a clear conscience. She also only even feels like she should have recourse against the thief who sold way too low, far, far lower than she might have sold if presented with the same choice. (Where does her unfairly stolen income come from. If it turns out to be millions and said thief is a pauper...good luck! ) Beyond the practical issue of restitution, as Tyler put more simply, some non-trivial chain of custody should not conveniently exonerate a journalist. If it is the sort of thing which could be published on its own and protected, it's still stolen.

This example is perhaps slightly different both in the scale of text stolen and the sense of the value of the text. Cole's complaint also seems more about reputation than specific income derived from the work. The ethical and legal principles in play seem similar.

Why don't people "own their own non-trivial quotes"? Why doesn't Jane get a penny every time someone cites "Jane's Law"? It surely is not because journalists somehow need the right to misrepresent for some practical publishing requirement. Maybe this "fair and accurate" standard should not be by default something journalists get to decide ahead of time only to be challenged later at a much later stage in the value game. They don't seem as a group all that good at it. The incentives they see, at least on some beats, are often for as much misportrayal as they can get away with. In that light, quoting without approval of the quotee seems a highly dangerous journalistic standard practice. The standard should be to ask permission unless you risk flight from justice of the quotee...not to fail to ask permission because otherwise you have nothing interesting to say. You may have freedom of the press, but not a right to have interesting things to say at the expense of others, or because your deadline slips or something.

Another dangerous theme in Jane's post...a few famous cases does not make journalism some institutional surrogate for law enforcement. It may exhibit a sadly greater willingness of people to talk to the press than the police, but then the press could just tell the cops. It needn't have the right to capitalize via direct quotation. Journalism is a business and should be considered as such. And as such, I don't see why it should be able to steal quotes/exerpts/etc. in any form.

Property restrictions do not compromise freedom to expose, anyway. What is protected is utterance, text and so on, not facts. It may well be true that Cole is just a whiner and may have been just as upset by fact revelation as e-mail snippets, but that doesn't mean he doesn't have more right to his snippets than other representations of his opinion. The notion and tradition of quotation as a somehow more powerful fact is a lot like the notion of "eyewitnesses" in trial court. Many often ascribe both greater persuasive power, while in practice they are more easily manipulated. The room for misinterpretation of direct but very selective quotes is great and heavily leveraged by journalists. That may be outside the ethical canon but is likely also at least as standard practice as anything within the ethical canon.

As far as what law protects/doesn't protect...One certainly has to sign one's rights away in many other contexts for video/vocal recordings...The law or courts may let "journalists" slide. We could probably agree that the exceptional positive cases of Watergate and so on are far outnumbered by the negative cases. Who among us doesn't know dozens of people that have been seriously misquoted to scandalize a situation artificially...pumping up subscriptions with nigh fictions? Isn't this what we all expect from the press and why we might avoid talking to them? If someone does such talking for you without your consent, is the press really so morally unfettered? If so, what great ethical prestidigitation! If one believes in copyright/IP/etc., then even if the excerpts indict terribly, why they have the right to publish vs. merely the obligation to report it to the authorities is bit of a mystery to me. Why not just report a faithful representation of the facts and be happy with that? Since when is Slate the Court of Record?

Ah. Does Professor Cole believe that it was unethical to publish the Pentagon Papers? More generally, is it unethical to publish classified documents? Arguments about the benefits of secret and closed meetings appear everywhere, of course. Somehow it's always "important enough" to publish something which supports your view or discredits your enemy, but an invasion of privacy or unethical if it discredits you or supports your enemy.

Somewhere there's consistency, one supposes.

I don't get the argument, other than noting that is what journalists do. If a journalist received stolen property, he would be obliged to protect it and then return it, not use it. Why is stolen information different?

Perhaps Tyler Cowen can inform me why the Washington Post and New York Times are permitted to print illegally obtained information, rather than "protect it and then return it" (his words)?

In my experience codes of ethics are not about ethics but about preserving the prerogatives of the guild or establishment. Facts of law are subject to litigation. Ethics debates are pissing contests.

Hmmmmm:

Within certain limits, people do "own their own trivial quotes", but therein is the problem: they are, in fact, trivial. If Cole feels he was harmed, he is welcome to flesh out the listserv member that leaked his material, and seek remedy accordingly, but I have a hunch he couldn't convince the court that there were damages in this case.

Hitchens, meanwhile, would have to be claiming the material as his own, or using it for his own profit (and/or Slate's profit), in order to be a party to the damage. There is no coherent argument to claim that the printing of (1) a limited portion of (2) ascribed material in (3) the context of column writing, met either of these conditions.

Information has always been held to a different status than traditional forms of property (although some entities -- like Disney, the RIAA, Hollywood, and a bunch of captive Congresscrtters -- are fighting hard to wreck havoc on that). The safest way to keep information private has always been to keep one's mouth shut.

Cole evidently didn't, and got a predictable result. Except now, instead of taking repsonsibility or at least targeting the culpable party, he apparently wants to make a big deal out of it for Hitchens' sake. That qualifies as either axe-grinding or showboating, in my book.

Bear in mind that Hitchens' source may not have informed him of the listserv's policy.

Good Leak or Bad Leak?

Cole would have an argument if he was intending to publish the material and people who otherwise would purchase it don't because they get the material from Hitchens's article instead.

anony-mouse,

Profit has nothing to do with copyright law. A common misperception. The Fair Use Doctrine covers Hitchens' use of the material.

On a separate note, because Cole is a "public figure", the standards for proving defamation are even higher than usual. And showing damages is downright impossible. Note to UK readers: defamation (libel and slander) are very difficult to prove under U.S. law.

Comparisons to ethical and legal issues relating to leaks seem way off the mark. The listserv was a private group with a set of rules regarding the privacy of material posted. The point is that members could post and debate material without fear that it will published without permission, generally because they are works in progress. Also because, as Helena Cobban pointed, other members live in countries where they were justifiably worried about reprisal. It's not about legality, but deeply about ethics. Hitchens presented this information without the context in order to attack Cole -- it was exceedingly dishonest. Journalist may have legal -- but they are subject to censure on ethical grounds like everybody else.

Tyler: just a note on the ethics of stolen information vs. stolen goods. In the case of information, "stolen" is a emphemism that doesn't quite capture what's happened.

If I have a chair and someone steals it, I no longer have a chair. If I have an thought and someone steals it, I still have the thought. In this case, even that's not really what's been stolen; rather, what's been stolen is not the thought itself, but the knowledge that Cole had this thought--yet another step removed from the common undertsnading of "stolen."

In this case, Hitchens did not steal the knowledge of the thought. He came across it quite innocently (so far as we know). So then Hitchens is expected to keep the knowledge of the thought to himself and not tell anyone because Cole would rather not have people know that Cole has a particular thought? It's an odd system of ethics that says Hitchen's right to free speech is so little valued.

Now maybe, to be nice, Hitchens should have kept the knowledge of Cole's thoughts to himself, but he was certainly under no obligation to because he was never party to any agreement that they be kept private. Couple that with the fact that knowledge of the thought is newsworthy (Cole is a public figure expounding on a subject of public debate), and the balance of interests is easy to discern. Hitchens did no wrong and Cole is a baby who lacks the courage of his convictions.

The GULF2000 mail list is not all that private; I found these within a minute of searching:

http://www.la.utexas.edu/chenry/usme/aip01/msg00202.html

http://www.fas.org/irp/fbis/sick102299.html

http://www.iranian.com/Times/Nov98a/Sanandaj/598front.html

http://www.peakoil.com/cat3.html
(4th post down)

Every mail list that I belong (or have belonged) to had no expectation of privacy. The real sin was posting a private email to the list. Maybe Prof Cole is confused... or wants us to be, about this point of netiquette?

Robbo said, "Journalist may have legal -- but they are subject to censure on ethical grounds like everybody else."

But this begs the question, censure from whom? And with what penalties?

Attorneys who violate their state's canon of ethics face censure in the form of private reprimand, public reprimand, suspension of license, and revocation of license, all from the state bar association. Journalists who work for companies (CBS, NYT, etc.) face internal censure if they violate their company's internal code of ethics (and yes, folks, they do have them, strange as it may seem), but face no external consequences.

Why is stolen information different?

There is no evidence that any information was stolen in this case. Cole sent the email to a mailing list; any of the recipients would be entirely within their rights to share the email with whomever they wished, so long as they gave credit to Cole for writing it.

I'm puzzled as to how anyone could claim that Hitchens was being "unethical" here. *He* didn't agree to keep Cole's email secret. Sure, he's passing along information from someone who violated a trusting relationship with Cole. But if that's "unethical", then so is reporting what Mafia informants say about their co-conspirators.

Slightly off topic but in response to Jane’s comments about fact checking. She’s at the only UK outlet that actually does this. I’ve been in conversations recently about setting up a UK version of an online newspaper (citizen’s journalism battalion) and the (non-UK) owners of the brand keep asking about who will do the fact checking.

The people involved with me, lots of them with years of experience of sub-editing on the national newspapers simply fall about laughing. It’s just not something that is done. Unlike the US papers, there are no fact checking departments: entirely up to the individual journalist to make sure their assertions are true.

Perhaps Professor Cole should put one of those unilateral confidentiality statements at the bottom of his emails:

"The information in this email is confidential and intened solely for the party to whom it was sent. If you are not the intended party then you must delete it and not share it with anyone. Thank you in advance for your cooperation."

Profit has nothing to do with copyright law. A common misperception.

Maybe not for purposes of determining criminal copyright infringement, but the court presiding over the civil suit might consider it...

Perhaps Professor Cole should put one of those unilateral confidentiality statements at the bottom of his emails

Well, he could, but such statements aren't binding on the recipient.

Jane, you owe us an apology for not linking to Hitch's article.

http://www.slate.com/id/2140947/

I wonder what we're going to do when Iran provokes us. Because Iran will provoke us. As soon as the international oil market figures out that it doesn't have to raise prices every time Ahmadinejad farts into a bag of flour, Iran will do something bigger to prop up the price.

Umm, I was joking. My mistake for not making that clear.

The essence of journalism is gossip and telling other people's secrets. It's an ethically shady profession -- like spying in a way -- but the U.S. Constitution's framers respected the end results enough to give the press a special privilege.

Jeff Weintraub, who is ordinarily a supporter of Cole, points out that the whole "it was private" thing is irrelevant: "Whatever the details here, this particular objection was a bit disingenuous on Cole's part, since he has expressed essentially the same views publicly in his blog and elsewhere. This is a red herring." And he goes on to demonstrate this by quoting various public statements by Cole.

Long ago, when I still read the NY Times somewhat regularly, they published an op-ed piece which could've used some fact checking. The entire point of the article was a goofy riff taking for granted an unchecked fact (with no citation given) which is at least implausible and which seems to be entirely untrue. I was sufficiently annoyed that I cut out the article and saved it, so now I can conveniently refer to it for your reading pleasure.

"If Women Just Stopped..." Nicky Marone, NYT, Sunday, Aug. 2, 1992

Marone spends several paragraphs vividly describing the consequences of National Women's Strike Day, before grounding her argument in her key fact: "Suppose women equalize the pay scale by working from Monday through noon Thursday for the same weekly salary? If the workplace is going to pay women 69 percent of what men make, then women should report to work 69 percent of the time." This would be less goofy rhetoric if in fact Marone troubled to show that women were not, um, already doing a significant amount of that absenteeism already, every week. Pay is largely private information, so there's an excuse for lack of skepticism about inequality statistics, but hours worked are visible, and for people on the same planet I inhabit, casually assuming the exact equality of average hours worked between men and women, esp. married men and women, seems less excusable.

Marone does not give a source for her 69 percent, but none of the dramatic 69ish figures that I knew of then (or know of now) compare men and women who worked the same number of hours per week (or have similar qualifications, or other things, for that matter -- but since Marone hammers on the hours worked, let's follow her lead). Instead, e.g., the motivated statistician in pursuit of higher truth can compare income of men "working full time" vs. women "working full time" by defining "working full time" as working more than 30 hours per week, including people with multiple jobs; then, if the women's distribution peaks around 36 and the men's around 45 (or whatever), voila! a scary number while staying with the technical limits of lying with statistics, cleverly done. But when that implied lie spreads so virulently that both a published author on women's issues and all the warm bodies on the NYT op-ed staff actually believe that the implication is literally true, it can create the occasional printed embarrassment.

The essence of journalism is gossip and telling other people's secrets. It's an ethically shady profession -- like spying in a way -- but the U.S. Constitution's framers respected the end results enough to give the press a special privilege.

The US Constitution contains no special privledges or protections for journalists. "Freedom of the press" means "freedom to publish", nothing more, and is a right enjoyed by ALL Americans regardless of whether or not they are journalists.

Dan,

I couldn't agree more.

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