From the Fall 2005 issue of The News Media & The Law, page 19.
The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.
The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.
Q: In the wake of Time turning over Matthew Cooper’s notes of his conversation with his confidential source to investigators in the Valerie Plame case, what advice would you give to journalists worried about protecting their confidential sources?
A: The Reporters Committee believes that reporters should control the disclosure of information about their newsgathering efforts. But practical burdens and complications intrude and force their hands in some cases. For more perspective on this issue, we turned to three attorneys who handle subpoena controversies for journalists.
Monica Dias, Frost Brown Todd, Cincinnati, Ohio:
These are times unlike any other for journalists and confidential sources. Until the events of this summer, who would have dreamed a reporter would go to jail over a story she never wrote, and who would have thought a reporter’s corporate employer would give his notes to a prosecutor seeking the identity of a confidential source?
If nothing else, the legal ordeal of Judith Miller of The New York Times and Matt Cooper of Time magazine serves as a warning to journalists and their attorneys that any relationship with confidential sources must be entered into with considerable thought and caution.
In these more treacherous times for journalists and confidential sources, I caution clients to consider the following:
First, realize that most states have shield laws that provide generally strong protection against compelled disclosure of your confidential sources. However, those state laws will not protect you if you are ordered to testify in federal court to a grand jury about a crime.
Second, do not enter into confidential relationships casually. Be careful about agreeing to take information “on background” or “off the record.” Have a frank discussion with the source. Does the source expect confidentiality in exchange for off-the-record or background information? Consider whether you’re willing to go to jail to protect the source. Maybe the information can be obtained another way with less risk to you.
Third, understand that you may be entering into a contract with the source. If you break a promise to keep the source’s identity confidential, the source could sue you for civil damages for breach of contract.
Fourth, talk to management before entering into a relationship with a confidential source. Will your managers and your corporate employer support you to the bitter end in protecting the source’s identity? Do they consider your notes to be company property? If your company has a policy against using confidential sources except in rare circumstances, then these discussions with management are even more important.
Ultimately, some stories are so important that using confidential sources may be the only way to get the information to the public. The Cooper-Miller case will undoubtedly embolden federal prosecutors to squeeze journalists for information. A full assessment of the risks will help journalists decide whether the story is worth jail.
Jay Bender, Baker, Ravenel & Bender LLP, Columbia, S.C.:
When the issue of confidential source protection arises there are usually two questions: How does the reporter protect the source from being identified and compelled to testify or produce material, and what steps can the reporter take to be protected from judicial compulsion?
Reporters in South Carolina have qualified — read limited protection against compelled testimony or production in state court under the state’s shield statute. In federal court they have similar protection under cases decided by the U.S. Court of Appeals in Richmond (4th Cir.). In both instances the protection extends far enough to limit compelled testimony from reporters on even non-confidential, published material.
Of course, the stakes are always highest when the reporter seeks to shelter a confidential source or confidential information. So, as a practical matter, the reporter and the paper or broadcast station need to have a common understanding in advance of the extent and circumstances of a promise of confidentiality. If the reporter is going to expect to be protected by the paper or the station, editors or news directors need to have a voice in the decision to promise confidentiality.
Next, the reporter and the source need to have an understanding about how far the reporter is expected to go to protect the source. Is every source really going to expect a reporter to go to jail to keep from revealing the source’s identity? Even if the expectation of the source is more limited, the reporter and editors need to evaluate the importance of the information in the context of the possibility that the reporter might be called to reveal the source and the likelihood that the party seeking to compel the disclosure will seek to invoke the contempt power of the court to compel disclosure. Ultimately the inquiry will focus on whether this particular bit of information is available only from this one source, crucial to the story, and worth the time, effort and expense of defending the promise of confidentiality.
Having decided that the information is unavailable elsewhere, crucial to the story and worth the risk to the news organization and the reporter, the reporter needs to arrange the contact with the source in such a fashion that only persons covered by the reporter’s privilege are party to the conversation unless the extra person is brought by the source. A short tale illustrates this point. A reporter was to receive information from a confidential source. The reporter was accompanied by a spouse when going to get the information. The spouse saw the source, and without the protection of a reporter’s privilege because the spouse was not engaged in newsgathering, the spouse was compelled to reveal the identity of the source. Spies would call it “tradecraft.”
Finally, it would be wise to have some mechanism to communicate with the source so that the source could have the opportunity to step out of the shadows to consent to disclosure as Judith Miller’s source did recently.
And, as long as we are talking about protective measures, is it necessary to issue a challenge in the piece by bragging that you have an exclusive, confidential source?
Kurt Opsahl, staff attorney, Electronic Frontier Foundation, San Francisco, Calif.:
Because journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of a free and independent press. Fearful of the devastating effect compelled disclosure could have on the free flow of information — the lifeblood of a functioning democracy — the judiciary has understood the vital connection between the confidentiality of sources and the freedom of the press, establishing a qualified privilege under the First Amendment. And even where the courts have failed to step in to protect confidential sources, principled reporters have refused to disclose, protecting and preserving the freedom of the press by sitting defiantly in jail.
But a publisher can undermine that noble cause by turning over the reporter’s notes, making the journalist’s efforts to protect the source no more than an empty gesture. A publisher faces different consequences for failure to disclose, and some may buckle under intense government pressure. A reporter should choose carefully when deciding which publisher to work with on critical stories that depend on the confidentiality of sources.
But a publisher cannot provide what it does not have. By limiting the documents in the publisher’s hands, a reporter can limit the possibility of an unfortunate disclosure. This is not to say that no reporter’s documents can reside on the publisher’s computer. Through the use of strong encryption protocols, such as Pretty Good Privacy (PGP), copies of a journalist’s notes can be held on the publisher’s system, but only be readable when the reporter provides the applicable passphrase. PGP can encrypt e-mail messages with the source, and a PGP disk can create a virtual hard drive to store sensitive supporting documents and notes. That way, the publisher can maintain the confidence of knowing that supporting documents exist, while the reporters can hold the key — and know that the decision to divulge the source’s identity remains in their own hands.