From the Spring 2009 issue of The News Media & The Law, page 8.
Confidential sources and whistleblowers have long been the lifeblood of reporters investigating the inner work of government. But the Privacy Act, passed in 1974 to regulate the federal government’s management of information about individuals, has been used lately in a way that makes it difficult for reporters to protect those confidential sources.
Increasingly, subjects of unfavorable news stories that use information held in confidence by the federal government are suing under the Privacy Act, arguing their rights were violated when an executive branch agency employee leaked to a reporter private information about them from a government file. What a reporter and the public saw as a legitimate news story was viewed by the plaintiff as a violation of his or her privacy rights.
Media lawyers have repeatedly argued that Congress never intended the Privacy Act to be a tool of private litigants looking to sue government officials over discussions of important public events and governmental affairs. Nor does it seem right that a law that explicitly embraces the First Amendment should be used to undermine the reporter-source relationship, which is important in public affairs reporting.
Although many stories using leaked information from anonymous sources identify the agency the information came from, courts have ruled that plaintiffs in Privacy Act lawsuits must establish that the private facts about them came from the executive branch of the federal government and identify the government staffers who leaked them. For their refusal to release those names and compromise the core relationships of their work, several reporters have faced escalating fines and harsh contempt threats.
The latest reporter to find himself in the middle of Privacy Act litigation is Detroit Free Press reporter David Ashenfelter, who reported in 2004 about a Justice Department investigation of a prosecutor whose terrorism case had fallen apart.
Richard Convertino, a former assistant U.S. attorney in Detroit, sued the government in 2004 over alleged Privacy Act violations, claiming the persons who had leaked the fact that he was being investigated by the federal government violated his privacy rights.
He subpoenaed Ashenfelter in 2006 in an effort to find out precisely who in the Justice Department leaked the information.
Convertino had prosecuted the first terrorist trial after the Sept. 11, 2001 attacks, in what became known as the “Detroit Sleeper Cell” case. Three of the four defendants were convicted. But after the trial, the case unraveled with the revelation that the prosecution had in its hands evidence the defense argued showed the defendants’ innocence. Convertino alleges that the oversight was minor, and the issue was only pressed by the Department of Justice to punish him for testifying before Congress earlier about what he considered the department’s unwillingness to provide sufficient resources to fully prosecute terrorism cases.
Ashenfelter has been fighting the subpoena for three years. His lawyer, Herschel Fink, has argued that Ashenfelter should be privileged from having to testify under a First Amendment-based reporter’s privilege and under the Fifth Amendment’s right to be free from self-incrimination.
Judge Robert Cleland in the Eastern District of Michigan dismissed his First Amendment argument in late 2008, ruling that the Sixth Circuit does not recognize such a privilege. After much legal wrangling Cleland did, however, accept Ashenfelter’s argument that the Fifth Amendment privileges him, because he could face prosecution over his receipt and use of confidential information.
At the end of April, Convertino’s attorneys subpoenaed Ashenfelter’s newspaper and editors for much of the same information, which may be contained in email messages and computer files. The newspaper and employees don’t face the same self-incrimination threats, Convertino argued, and should not have a defense enabling them to protect the information, particularly because the court has already ruled that there is no reporter’s privilege to protect the information. The battle is ongoing.
Former Army scientist Steven Hatfill brought a Privacy Act lawsuit against the government after he was identified in the media as a “person of interest” in the investigation of the 2001 anthrax attacks, which killed five people and sickened 17 others.
At least 13 reporters were initially served subpoenas in the case. Four subpoenas — served on National Public Radio, The Baltimore Sun, CNN and UPI — were voluntarily withdrawn early in the process. Another nine subpoenas — served on ABC, CBS, NBC, the Associated Press, The Washington Post, Newsweek, Gannett Co., The Los Angeles Times, and former Baltimore Sun reporter Scott Shane — were contested primarily in the U.S. District Court in Washington, D.C. (The Times subpoena was challenged in federal court in Los Angeles.) Another subpoena was served in federal court in New York on Don Foster, a professor at Vassar College who wrote about the FBI’s investigation.
In 2007, U.S. District Judge Reggie Walton ordered six reporters to testify: Newsweek’s Michael Isikoff and Daniel Klaidman, ABC’s Brian Ross, The Washington Post’s Allan Lengel, CBS’s James Stewart and USA Today’s Toni Locy. Several of the reporters’ sources gave waivers allowing the journalists to testify. But Hatfill still sought contempt sanctions against Stewart, who refused to give up his additional sources, and Locy, who did not remember which sources provided information specific to Hatfill.
In February 2008, Walton held Locy in contempt and imposed increasing fines of $500 per day for the first seven days, $1,000 per day for the next seven days, and $5,000 a day for the next seven. He never ruled on Stewart’s subpoena.
Shortly after the contempt hearing, Hatfill settled his Privacy Act suit against the government for $5.8 million. Locy filed an appeal of Judge Walton’s contempt order, and after the settlement Hatfill filed a motion to dismiss Locy’s appeal. In November 2008, the court dismissed the appeal, holding that the case was moot.
Wen Ho Lee
Wen Ho Lee, a former nuclear physicist at Los Alamos National Laboratory in New Mexico, was the target of an espionage investigation in 1999. Lee pleaded guilty to one charge involving the mishandling of classified information. Meanwhile, information about the investigation, as well as personal information about his family, finances and results of a polygraph test, were leaked to the press.
Lee filed a Privacy Act lawsuit against the U.S. Departments of Energy and Justice in 2000. As part of his suit, he subpoenaed several reporters for their confidential sources.
In late 2003, Judge Thomas Penfield Jackson of the U.S. District Court in Washington, D.C. ordered five reporters — James Risen and Jeff Gerth of the New York Times, Bob Drogin of the Los Angeles Times, Pierre Thomas, formerly of CNN but working for ABC News at the time of the subpoenas, and H. Josef Hebert of the Associated Press — to reveal their confidential sources. The Washington Post’s Walter Pincus was ordered to do the same in early 2004.
When the journalists refused to give up their sources, Jackson held Risen, Gerth, Drogin, Thomas and Hebert in contempt, and imposed fines of $500 a day. Pincus was held in contempt at a later proceeding. The U.S. Court of Appeals upheld the contempt sanctions for most of the reporters. The sanction against Gerth was thrown out because he had testified under oath that he had no confidential sources regarding Lee and did not know who provided the information for articles about Lee he co-wrote with Risen.
The case was appealed to the full U.S. Court of Appeals and to the U.S. Supreme Court, both of which declined to hear the case.
In between those appeals, the case took an unusual turn. Lee settled his Privacy Act suit with the government and the media organizations involved contributed to the multi-million dollar settlement. ABC News, the Associated Press, the Los Angeles Times, The New York Times and The Washington Post agreed to jointly pay Lee $750,000 — the first and only time media companies are known to have contributed to a Privacy Act lawsuit settlement.
The Privacy Act’s misapplication
The reporters weren’t the targets in these Privacy Act lawsuits. But because the plaintiff’s complaints focused on government leaks, the journalists who covered the government investigations into these plaintiffs became central figures in the cases.
According to First Amendment lawyer Lee Levine, the fundamental problem lies in the interpretation of the Privacy Act that underpins those suits.
“The bottom line basis for these lawsuits has been that we supposedly have a law on the books [the Privacy Act] that says the federal government is not allowed to disseminate information about people who are involved in matters of public concern, just because that information is in a public record,” Levine said. “That is inconsistent with notions of self-government and FOIA.”
According to Levine, who represented journalists in the Hatfill and Lee suits, the Privacy Act was never intended to allow individual plaintiffs to sue the government when truthful information about a matter of public concern is distributed to the press. He says that a cause of action for that type of leak was assumed in the case involving Wen Ho Lee. The cases since Lee’s have been settled, denying the courts a chance to bless or amend that interpretation of the Privacy Act’s use.
“[The Privacy Act] is a post-Watergate reform,” he said. “It wasn’t designed to deal with the situation in which information about a suspect in an ongoing criminal investigation is disseminated by the government to the press.”
In an early Privacy Act case, Zerilli v. Smith, reputed mobsters brought a lawsuit against the government claiming that the Privacy Act was violated because of a disclosure of FBI wiretaps of their conversations. The U.S. Court of Appeals for the District of Columbia in 1981 upheld the government’s motion for summary judgment dismissing the claim.
Kevin Baine, an attorney who authored an article about the Privacy Act for the Media Law Resource Center, wrote that the lawsuit filed by the plaintiffs in Zerilli is different from the recent cases involving reporters and the Privacy Act. According to Baine, the disclosures in the Lee and Hatfill cases did “not implicate traditional notions of privacy,” like Zerilli did.
The Act was not intended to restrict the disclosure of everything in a government file, he wrote. Instead, it was intended to protect an employee’s privacy about matters of private concern, he continued.
“A statute preventing the dissemination of personal information in the government’s possession is not naturally read to encompass current, newsworthy information about a legitimate, ongoing criminal investigation,” he wrote.
Other media attorneys agree. A coalition of media organizations, including the Reporters Committee, argued in a friend-of-the-court brief: “Privacy Act claims should be limited to their originally intended scope — improper disclosure of private personal data accumulated by the government.”
Though Lee, Hatfill and Convertino all felt violated by the government’s leaks, Levine said, those wrongs could have been addressed in other ways: “The Privacy Act is really an ill-fitting bandage for this kind of injury.”
The combination of the Privacy Act’s warped application and the lack of a federal reporter’s privilege will continue to effect reporters and their use of confidential sources.
“These cases under the Privacy Act are part of a larger mosaic that involves all that has happened over the last few years,” Levine said. “There is a general sense out there that it is more difficult to rely on confidential sources.”
Either the Privacy Act needs to be amended, he said, or a federal shield law needs to be enacted that would protect reporters who are subpoenaed in these lawsuits. Until then, reporters using confidential sources will risk being snagged in a costly Privacy Act battle.