Five ways to protect journalists and their anonymous sources

May 24, 2013

In a speech Thursday at National Defense University, President Obama discussed the Justice Department's prosecution of leakers, emphasizing the need to "strike the right balance between our security and our open society." Many observers believe that current laws do too little to protect the rights of journalists to gather information about national security — and the right of government employees to disclose classified information if they believe doing so is in the public interest. Recent developments have underscored the legal dangers that whistleblowers and the journalists they confide in currently face.

Barack Obama (Associated Press)
(Associated Press)

But what can we do about it? Here are five ways to shore up the freedom of journalists to gather and report news that the government might want to keep secret.

Pass a media shield law: A media shield law would protect journalists from being forced to identify confidential sources to law enforcement. It would also protect the confidentiality of journalists' communications by restricting the government's ability to obtain records from telecommunications providers.

Two shield laws are being considered in Congress. The House version is sponsored by Rep Ted Poe (R-Tex.). Similar legislation passed the House in 2007 and 2009. The White House has signaled its support for an alternative sponsored by Sen. Chuck Schumer. It was considered by the Senate in 2009 but never passed the full Senate.

According to the American Civil Liberties Union's Gabe Rottman, the most important difference between them is how broad an exception they provide for national security. The House version has a relatively narrow exception that only applies when there's an imminent threat of a terrorist attack.

In contrast, Rottman says, "the administration in 2009 requested a really broad national security exception" for the Senate version. In Rottman's view, Schumer's bill is "better than nothing" because it would at least require some judicial oversight. But he warns that the exception is so broad that it wouldn't have prevented the government from obtaining the AP's calling records.

NSA whistleblower Thomas Drake. (Jacquelyn Martin/Associated Press)
NSA whistleblower Thomas Drake. (Jacquelyn Martin/Associated Press)

Reform the Espionage Act: A strong media shield law would protect the confidentiality of reporters' communications, but it wouldn't stop the government from prosecuting leakers directly if they could be identified through other means. And aggressive prosecution of leakers could cause (or may already be causing) government sources to clam up.

If Congress wanted to reverse that chilling effect, it could revise the Espionage Act, the 1917 law the administration has used to pursue leakers. "The Espionage Act is meant to deal with espionage," not people who leak information to the government, Rottman says. In principle, Rottman supports reforming the act to make clear that it is not to be used against journalists or whistleblowers.

But "trying to revise the Espionage Act is almost like opening a Pandora's box," he says. While some members of Congress are sympathetic to press freedom, others are extremely hostile toward leakers. So once an overhaul of the Espionage Act is on the table, Congress could change it in ways that makes it more, rather than less, hostile to press freedom.

Fix the overclassification problem: Another approach would be to get the government to be more judicious about declaring information to be secret in the first place. Among recent leak cases, Rotman says, have been "a bunch that are clear cases of whistleblowing."

Rottman favors stricter rules for what can be classified, as well as "presumptive declassification in certain instances." He also argued that it should be easier for defendants in leak cases to argue in court that the information they are charged with leaking shouldn't have been classified in the first place.

But Rottman conceded that dealing with overclassification is a "hard problem." Governments are greatly tempted to suppress embarrassing information by claiming that its release will harm national security. And because the information is secret, it's hard for third parties to monitor classification decisions and discover cases where the classification power has been abused.

Promote cooperation between the government and journalists: Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, advocates greater cooperation between the government and the press. In his view, if the executive branch were more willing to share details of their security concerns with journalists, the latter would be willing to accommodate U.S. concerns.

Take the recent case in which the government obtained the phone records of more than 100 Associated Press reporters as part of a leak investigation. Brown suggests that "the government may not have gone far enough in its efforts to engage with the AP in fully disclosing what was at stake" in that case, he said — specifically that the "terrorist" in the story was actually a U.S. agent.

Brown believes that if the government were more forthcoming about its security concerns, news organizations would be more accommodating about holding information that might damage national security. That might eliminate the perceived need to prosecute leakers after the fact.

Build better technologies for anonymous leaking: A final idea sidesteps the policy arena altogether: Build technologies that allow untraceable leaking. The government can't convict a leaker if it can't identify him.

Wikileaks pioneered this style of journalism. It had a sophisticated document-submission system that made it difficult for anyone, even Wikileaks personnel, to identify who had submitted materials. The anonymizing network Tor is another example. It allows Internet users to surf the Web in a way that makes them impossible to identify.

Last week, the New Yorker introduced Strongbox, a sophisticated system for anonymous news submissions. If a source never tells a journalist his identity, then there's no way the government can force the journalist to hand over the information.

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Washington Post · May 24, 2013