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Diverging interests

The saga of Matt Cooper and Judith Miller raises serious questions about notes, e-mail and anonymous sources. From the Summer…

The saga of Matt Cooper and Judith Miller raises serious questions about notes, e-mail and anonymous sources.

From the Summer 2005 issue of The News Media & The Law, page 4.

By Grant Penrod

Time magazine reporter Matthew Cooper was ready to go to jail. His employer was right behind him.

They fought their case all the way to the U.S. Supreme Court, losing their bid to withhold the identity of Cooper’s confidential sources from the federal grand jury investigating the leak of undercover CIA operative Valerie Plame’s identity.

Then, against Cooper’s wishes, Time decided it would turn over his e-mail and other material identifying his sources. Cooper was not pleased, but Time’s action helped him secure a waiver from his source and subsequently avoid jail.

Meanwhile, New York Times reporter Judith Miller sits in jail for refusing to reveal a confidential source to the same grand jury. Her employer, which unlike Time was not subpoenaed, stood steadfastly behind her, releasing a statement saying it was “deeply disappointed” by Time‘s decision.

“We faced similar pressures in 1978 when both our reporter Myron Farber and the Times Company were held in contempt of court for refusing to provide the names of confidential sources. Mr. Farber served 40 days in jail and we were forced to pay significant fines,” Times Publisher Arthur O. Sulzberger Jr. said in a statement immediately after Time agreed to comply with the court order.

Cooper and Miller’s saga raises vexing questions for reporters who wish to keep their confidential sources secret. How much information should a reporter put into notes and e-mail or onto a computer? To whom within the news organization should a reporter reveal the identity of his or her sources? What happens when the interests of a reporter and a news organization diverge?

Notes, computers and editorial review &#151 the tools of journalism &#151 may be turned against reporters when prosecutors or civil litigants decide that the best way to prove their case is to force a reporter to become a witness.

Time was lambasted for deciding to comply with the subpoena, particularly by those who think it will frighten sources from coming to the press with valuable information.

“Time Inc. took the notes of the reporter and then turned them over. So who’s worse here, the press or the government? The press is worse. The press is lily-livered,” said James C. Goodale, a retired partner at Debevoise & Plimpton LLP in New York and former counsel to The New York Times. “It will certainly increase the natural distrust reporters have of editors and of owners . . . It’s not going to help that relationship.”

Former Washington Post Watergate reporter Carl Bernstein told CNN’s “Wolf Blitzer Reports” that the difference between the Post‘s decision not to comply with subpoenas from the Nixon administration and Time‘s decision is that Time magazine “is really part of a big entertainment company, which is part of the problem of our journalism today, that so many of our journalistic institutions see themselves as part of a larger entertainment conglomerate, instead of real reporters.” Time Editor-in-Chief Norman Pearlstine has publicly denied that any such influences affected his judgment. (In a 1973 civil lawsuit, Richard Nixon’s Committee to Re-elect the President subpoenaed Bernstein, Bob Woodward and other journalists for their Watergate materials. The subpoenas were later quashed.)

The effects of Time‘s decision already are being felt at the magazine. Time reporters Mark Thompson and Brian Bennett confronted Pearlstine at a July 11 meeting with e-mail from sources who said they would have trouble trusting the magazine in the future, The Washington Post reported. And Pearlstine told the Senate Judiciary Committee that the “chilling effect is obvious.”

Such reluctance from sources seems to be spreading, said George Freeman, assistant general counsel to The New York Times Co.

“I get the vibes that sources in government dealing with other entities may be taking the same position or are more worried and concerned about whether the reporter will be in the position to keep the source confidential, and that’s going to have the effect of drying up the news, which is exactly what we are worrying about,” he said.

Ultimately, what harmed Cooper was that his notes and e-mail to his editor &#151 his own journalistic tools &#151 were turned against him. Despite his continued refusal to identify his sources, everything he knew was revealed to prosecutors before he ever walked into the grand jury room. The situation exposed a dangerous chink in the shield journalists raise to protect the identity of their confidential sources that even a willingness to go to jail cannot patch.

The ownership of reporters’ notes is open to a good deal of speculation. “The traditional view is that the employer owns the written product that its employees produce,” said Mary Ann Werner, vice president and counsel to The Washington Post. “Although there may be circumstances or special arrangements made where that is not the case.”

“It really depends on the reporter &#151 how they take notes and what the notes are on,” said Karlene Goller, vice president and deputy general counsel to the Los Angeles Times. “I’ve always taken the position that the reporter owns their own notes” she said, because reporters traditionally keep and maintain their own notebooks. “When you start getting involved with computers, that might change. It just depends on the context. If it is something that we’ve spent a lot of time on institutionally to gather, if it is data collection, that might make it different but I think it really depends on the reporter and the project.”

The solution, Goodale said, is for reporters to strictly limit where and when their sources are identified. “They should not make notes on the computer,” he said. “They certainly should not send to editors e-mails that if sought by someone else would be compromising or otherwise not useful to a reporter’s carrying out his duties. All such notes, all such information should be kept off the computer. When the story is completed the notes and that information should be thrown away.”

He also said these limits should apply to identifying sources within the newsroom.

“I’ve always wondered whether editors should know confidential sources anyway,” Goodale said. “When I started out in the game years ago, a reporter never disclosed his source to an editor.”

Goodale said that keeping confidential sources’ identities from editors does not prevent the editor from ensuring accurate journalism. “That doesn’t prevent an editor from looking at the other parts of the story to figure out whether the story makes sense,” he said.

But Cleveland Plain Dealer Editor Doug Clifton argues that revealing sources within the newsroom is important to maintain accuracy. “As a guard against reporters just making stuff up and attributing it to anonymous sources and not telling anybody within the organization, there are lots of procedures in place where newspapers demand that the reporter reveal the source to the editor. If that happens then it takes the decision about maintaining the promise of anonymity from the hands of the reporter to the newspaper.

“If the Time decision is one that is followed by many other enterprises then it does change the equation. I think that papers will tend to come up with rules that tend to insulate source information from notes. You can make rules that say the names of anonymous sources will never appear in the computer system or in the notes. Then the notes can’t be subpoenaed as in the Time case and handed over to the prosecutor,” he said.

Clifton started a confidential source controversy of his own after revealing in a July column that he was withholding two stories based on leaked documents for fear that they would result in an investigation and Plain Dealer reporters being forced to choose between jail or revealing sources. The Plain Dealer ran one of the stories anyway, concerning an FBI corruption investigation of a Cleveland politician, after an Ohio weekly, the Scene, broke the story. By the end of the month, a federal judge had appointed Toledo lawyer John Czarnecki to investigate and prosecute the leak.

Shortly after the Time decision, the Los Angeles Times issued a new ethics policy. “When practical, a reporter should consult an editor before entering into an agreement to protect a source’s anonymity. In some cases, an editor may insist on knowing the source’s identity in order to evaluate the reliability of the information provided,” the policy states.

Although the policy had been in development for years and was not issued in response to the Time decision, a small part was added to address such situations. “Reporters should be extremely circumspect about how and where they store information that might identify an anonymous source. Many electronic records, including e-mail, can be subpoenaed from and retrieved by non-newsroom employees.”

Goller explained that the policy, which was crafted by the newspaper’s editors, addresses issues that Los Angeles Times reporters have been familiar with for some time.

“There’s been a lot of publicity about trying to use reporters’ e-mails as roadmaps for their reporting in the past, so we’ve talked about it for years and our reporters, our newsroom is very aware of the pitfalls of e-mails and our reporters do a lot of good, old-fashioned first-person reporting and telephone reporting,” she said.

The identity of sources sometimes should be shared with editors, but does not need to be known elsewhere in the company, Goller said. “I think it needs to be contained within the newsroom, and then you don’t have to get involved with the corporation,” she said. But she noted that “I feel no pressure from [Times corporate owner Tribune Co.] in that regard. Tribune is a newspaper company through and through.”

Werner said The Washington Post is not changing its policies because of the Plame case. “Notes are important to a reporter’s work because they help ensure accuracy and accountability. We have always advised reporters to be circumspect when dealing with confidential sources in terms of their notes, use of e-mail and even the handling of telephone calls,” she said. “As far as I know, it is common practice at major news organizations for an editor to know the identity of a confidential source in order to evaluate the credibility of the source and the accuracy of the information being provided, but that should not impair the organization’s ability to keep promises to confidential sources. Those promises are critically important,” she said.

Freeman doesn’t think sharing the identity of sources with editors is a big concern. “In fact, at the Times we initiated a policy some time ago that at least one editor has to be told about the confidential source,” he said. “So if anything I think in the last year or two there’s been more of a sense that the people in the organization have to know what the reporter is doing.

“I think investigative reporters know how to handle the situation as a matter of training and experience. It’s more the reporters who end up with confidential sources that may become a litigious situation in areas other than investigative teams where the problems will arise, because they are just not used to some of the scenarios and problems that may arise.”