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Feds' Breach of Reporter/Source Confidentiality Stifles Media

By Ben L. Kaufman · August 13th, 2013 · On Second Thought
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Don’t you just hate it when a president and attorney general expect us to trust them? 

Missile Gap. Watergate. Tonkin Gulf. Weapons of Mass Destruction. War on Terror. All stinking precedents. 

Now, it’s Obama and Holder and their faux contrition for overzealous feds snooping in reporters’ emails and phone calls. 

Investigators use those records to identify people contacted by reporters. It’s all of us without any demonstrated links to news stories about classified materials.  

In the name of national security — increasingly a late-night TV punch line — the federal intimidation of reporters beggars all of us.  

Even as Holder announced new Department of Justice “guidelines” for invasions of journalists’ lives and work, DoJ demanded New York Times reporter James Risen testify in the prosecution of a suspected CIA leaker.

He refused, but one of the most conservative federal appeals courts, the Fourth Circuit in Richmond, Va., recently ruled 2-1 that Risen must testify. 

Risen says he will risk contempt of court rather than reveal his source. That could land him in prison even if no leaker ever is convicted.  However, violating his promise of confidentiality could end his career as a national security reporter.  

Reporters often promise confidentiality to whistleblowers and other sources who reasonably fear painful retribution — even prosecution — if they are identified. 

If it weren’t for confidentiality, sources are unlikely to tell reporters about government and corporate corruption or what Washington is doing in our names. 

But back to trust.

Holder’s guidelines respond to hostile and wide reactions to feds’ recent snooping in the phone records of AP reporters and the emails of a Fox News reporter. 

It didn’t take long for street savvy New York Sen. Chuck Schumer to smell a rat. He realized Holder’s guidelines don’t prevent any president from reneging on investigative restraint “at the whim of an attorney general…” 

So Schumer is pushing legislation to enshrine key privacy and confidentiality protections. With South Carolina’s Lindsey Graham, their wonderfully named Free Flow of Information Act of 2013 (S. 987) recalls Schumer’s failed shield law four years ago. “Our bill will ensure that any administration, now or later, can’t make a U-turn and abandon these new guidelines,” Schumer said. 

A key element in S. 987 requires federal judges to “apply a balancing test before compelling disclosure” by journalists. That’s no reason to cheer. It doesn’t take much to tip the balance. Feds collecting Americans’ telephone records was approved by the Foreign Intelligence Surveillance Act court. Moreover, confidentiality would have no protection if information about leaks could be used to prevent terrorist attacks or when information could help prevent deaths and kidnappings in cases that don’t involve national security. That is fatally weak. It’s also unclear whether social media would be protected. 

Journalists accept the possibility of local, state or federal authorities going after our emails, phone records, notebooks, etc. It can be easier than hard-slogging investigations. Some is done legally, some isn’t.

On the other hand, too many reporters promise confidentiality without seriously considering what might happen if they are asked to reveal their source(s). Few of us want to go to the stake for a story. 

We all face serious problems when coercion risks turning reporters into unwilling agents and snitches:  

•Wary whistleblowers will not contact reporters with information the public needs. Rare potential sources are willing to trust assurances of confidentiality when contempt of court and jail time might persuade reporters to identify their source(s). 

•Journalists will be more cautious — dare I say timid — about reporting what whistleblowers say, given Washington’s freedom to call any information “classified.” That’s especially true when reporters fear searches of their emails and phone records, a subpoena, coerced testimony or contempt of court. 

•All of us suffer from an impoverished public debate when we can’t learn what the government is doing in our name. 

I’m not elevating a reporter’s emails, phone records or promise of confidentiality to that of the confessional, lawyer-client or physician-patient privilege. 

Those three have gathered power historically by protecting penitents’ salvation, criminal defendants’ freedom or patients’ lives.  

A reporter’s promise of confidentiality is different. It protects the source of information, not the journalist. Balancing that is the sometimes immediate but often intangible communal benefit. That’s why we defend the promise, even if it means going to jail. 

So if you still trust Obama’s and Holder’s repeated assurances of respect for a free press, you’d love the legend of crafty New Yorkers asking Greenhorns just off the boat, “Wanna buy a bridge?”



CONTACT BEN L. KAUFMAN: letters@citybeat.com



 
 
 
 

 

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