Stopping an end-run around the reporter's privilege

Closing loopholes for subpoenaing third-party communications helps journalists keep information confidential
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Michael Lambert

Many states with shield laws still have loopholes that allow subpoenas of third-party records.

The ability to maintain the confidences of a reporter-source relationship is a cornerstone of journalism. Reporters often rely on the safeguards of state shield laws and reporter's privilege to preserve the trust. But these protections are not absolute — and in the area of electronic communications, they are often essentially absent.

Journalist Kathy Leese recently learned about the loophole in her state's law that allowed the prosecutor to subpoena her cell phone records without her knowledge.

In December 2014, Leese had been asked to reveal her sources for stories in The Miami County (Ohio) Reporter that the Miami County Sheriff’s Office allegedly mishandled sheriff’s sales and signing of deeds. The following May, to Leese's suprprise, the county prosecutor's report on the allegations included three pages of her cell phone records that were acquired with a grand jury subpoena.

Among the 40 states with shield laws, Ohio is one of 39 states that permits subpoenas of third-party records. According to the prosecutor's report, the prosecutor obtained the records to identify those providing information to Leese about the sales deeds investigation. The report revealed a number of phone calls and text messages between Leese and four others.

“My rule for myself has always been if someone is willing to share their story with you, you owe it to them to be a trustworthy person,” Leese said. “If you don’t know how to keep a confidence, and you don’t know how to maintain trust, you have no business working in the field of journalism.”

The prosecutor’s ability to obtain Leese’s phone records through a grand jury without her knowledge demonstrates the inadequacies of current legal protections for the electronic communications of journalists. Typically, members of the news media are protected from disclosing their sources or newsgathering materials by state shield laws, or the reporter’s privilege stemming from the First Amendment, state constitutions, common law, or court rules. But these laws and privileges do not account for electronic communications through phones, computers, or other technologies.

Ohio’s shield law, for example, does not protect third-party records of journalists' communications. Absent these safeguards, the government can circumvent shield laws by subpoenaing communication providers, such as phone companies and email services.

In October, Montana became the first state to amend its shield law to completely protect journalists' electronic communications from government investigation. The "Media Confidentiality Act" prohibits the government from requesting disclosure of “privileged news media information from services that transmit electronic communications.”

While not providing a complete bar to subpoenaing third-party electronic communications, the shield laws of three other states — California, Connecticut, and Maine — require notice to journalists prior to seeking information from communication providers. Notice gives journalists the opportunity to fight subpoenas or seek narrowing of the scope. California’s shield law, for example, demands five days' notice to journalists before third-party providers are subpoenaed.

“I think there needs to be a serious look at the legislation,” Leese said. “Freedom of the press is such a vital part of what makes our democracy work, and if reporters can’t protect their sources, we've got a serious problem in our country.”

Although attempts to enact a federal shield law have failed to garner momentum in Congress, the Department of Justice recently amended its guidelines on subpoenaing reporters. The department saw a backlash from the public and media organizations after secretly subpoenaing the phone records of AP and Fox News reporters in 2013.

The guidelines now permit the attorney general to pursue a subpoena of a reporter’s third-party communications after the government has made all “reasonable attempts to obtain the information from alternative sources.” Additionally, if the attorney general has authorization to obtain third-party records of news media, the journalist will be given “reasonable and timely notice” before the subpoena is sent.

Reporters need these robust protections of their communications to encourage sources to share information with them in confidence. If the government can inspect journalists' communications to uncover their confidential sources, sources will be chilled from sharing valuable information with the press and whistleblowers will be scared into silence. In turn, the press will be hampered from disseminating newsworthy information to the public.

As Leese experienced, this is not a hypothetical fear.

“I've had people say to me since then that, 'I'm afraid to talk,' because what if they take my records again? It scares potential sources, and that's really unfortunate,” Leese commented.

Although the prosecutor’s office in this case only obtained the phone numbers, dates, and frequency of Leese’s communications, collecting this metadata, particularly if aggregated over periods of time, can reveal personal and sensitive information about journalists and their sources. Providing source confidentiality is meaningless if the government can pry into private communications.

Historically, legislators enacted shield laws to protect journalists’ sources and their notebooks, documents, and other unpublished material obtained during the newsgathering process. But newsgathering in 2016 is accomplished with cell phones, computers, and other means of electronic communication, all of which function as modern-day notebooks, and which need the full protection under the law.