Google/YouTube: We're not 'targeting a journalist'

Business Insider picked up my post about Google and YouTube lawyer Andrew Schapiro's statement last week at a hearing in the Viacom/Premier League copyright suit that he "would certainly be interested...about hearing from" CNET News reporter Greg Sandoval in the event the court holds a trial over the issue of who leaked the reporter information, including deposition testimony from Google CEO Eric Schmidt, in the fall of 2009. Business Insider's post originally ran under the headline, "Google Threatens to Subpoena CNET Journalist To Find Out Who Ratted On Eric Schmidt," and it still features a picture of a Chinese anti-government activist throwing a rock at a line of riot police, with the caption, "Google's attorneys are coming..." In response, Google issued a statement to the site:

This headline is completely inappropriate, and the image caption is in shockingly poor taste. The judge ordered that this investigation take place, so this is in no way Google targeting a journalist. Keep in mind that all the documents in the case were under seal, and it was illegal to leak them. Comparing this to China is beyond absurd, and the story needs to be changed immediately, esp since our attorney never mentioned anything about a subpoena.

Putting aside the propriety of the China photo and caption, Google's complaints are far off the mark. To say that "[t]he judge ordered that this investigation take place, so this is in no way Google targeting a journalist," ignores the fact that: 1) the jury trial that may take place would be a trial on Google's motion for terminating sanctions against suspected leaker Robert Tur; and 2) it was Google's lawyer who told the judge, "I would certainly be interested, although we get into other complications, about hearing from Mr. Sandoval if there were going to be a trial." Google has every right to pursue sanctions against Tur if it believes he violated the protective order. But once it does so, its flack can't then blame it all on the judge. Moreoever, the judge did not force Schapiro to express "interest[]" in "hearing from Mr. Sandoval" at the trial. When the judge raised the issue of asking Sandoval who was his source, Schapiro could have said, "Your Honor, we're Google. We're strong supporters of the First Amendment. We respect the right of journalists to report the news. We don't drag them into court proceedings, and we certainly don't ask them to reveal their confidential sources." Instead, he expressed "interest[]" in "hearing from" Sandoval -- clearly an indication that he may seek his testimony.

To the extent that Google is objecting to Business Insider's (and impliedly, my) use of the word "subpoena," its complaint is silly. True, Schapiro did not use the word "subpoena." But he didn't need to; I'm sure everyone in the courtroom knew he was referring to the possibility of subpoenaing Sandoval. Schapiro stated in open court that he "would certainly be interested...about hearing from Mr. Sandoval if there were going to be a trial." How else but through a subpoena would he "hear[] from" a reporter? At a trial, the way to summon non-parties (including journalists) to the witness stand is via subpoena. The notion that a reporter would voluntarily waltz up to the witness stand and reveal his sources without need for a subpoena -- which I'm sure would be vigorously contested by CNET and its parent CBS, and probably a bevy of press amici -- is fantasy. Moreover, Schapiro's acknowledgment that seeking to "hear" from Sandoval at trial would result in "other complications" is a recognition of the fight that would ensue if Google actually did follow through and seek to force Sandoval to testify.

Lastly, perhaps what's most telling about Google's statement to Business Insider is what's missing: A denial that it will seek Sandoval's testimony. Google could quickly clear this all up by definitively stating that it will not call him, and will not ask him to reveal his sources -- through a subpoena or otherwise. Should Google say that, I will be glad to print it. Until then, the most definitive statement we have is from its lawyer, who told a federal judge that he would "certainly be interested ... about hearing from Mr. Sandoval if there were going to be a trial." Sounds a lot like "targeting a journalist" to me.