By Jennifer R. Henrichsen and Hannah Bloch-Wehba*
The practice of journalism has never been more global than it is today. At the same time, new applications and services can pose risks to the security and integrity of communications. The inability to know whether and to what extent communications are being monitored creates fear and uncertainty concerning what the government considers lawful surveillance, chills speech, and impedes the exercise of First Amendment rights, including free association and free expression.
This guide has two aims. First, in light of the Justice Department’s revised news media guidelines, we attempt to clarify the scope of U.S. government authority to obtain information about journalists’ communications. Second, we outline how some common journalism tools expose reporters and sources to risks in light of this framework. It is our hope that a better understanding of the legal architecture that facilitates government access to communications records will help journalists make informed decisions about the types of security tools they use.
* Henrichsen is a Ph.D. student at the University of Pennsylvania’s Annenberg School for Communication and a former First Look Media Technology Fellow at the Reporters Committee. Bloch-Wehba is Stanton First Amendment Fellow, Associate Research Scholar in Law and Clinical Lecturer in Law at Yale Law School and a former Stanton Foundation National Security Fellow at the Reporters Committee. With deep gratitude, the Reporters Committee thank First Look Media and the Stanton Foundation for their support for this project. The authors are indebted to Selina MacLaren for her careful and thorough assistance in getting this project to its final form.