Report to the 70th General Assembly
October 17 – 21, 2014
Issues impacting the confidentiality of reporter-source relationships continue to dominate discussions of press freedom. The revelations by former National Security Agency contractor Edward Snowden concerning broad government surveillance programs, coupled with new government policies forbidding government employees from having any unauthorized contact with journalists, have amplified the chilling effect on reporter-source communications, and are making it even more difficult for journalists to gather and report news on matters of public concern.
With the U.S. Supreme Court in June declining to hear the appeal of James Risen—a reporter for The New York Times who refused to testify in a leak prosecution concerning the identity of his confidential sources—and the lack of progress on a federal shield law to protect journalists, concern over the government's relentless pursuit of leaks and the chilling of reporters' communications with confidential sources has only increased.
Since the summer of 2013, when it was revealed that the U.S. government had quietly seized telephone records of the Associated Press and emails of Fox News reporter James Rosen, warrants and subpoenas issued to journalists, particularly in national security "leak" cases, have been a top concern for journalists and media organizations.
Journalists continue to face other challenges as well. In August, reporters covering the protests that followed the police shooting of an unarmed black teenager in Ferguson, Missouri, were arrested and harassed by police for simply doing their job.
Two journalists were detained while doing nothing more than charging their phones in a local McDonald's restaurant. Several journalists were arrested, and many others were intimidated, harassed, and threatened by the police while covering matters of public concern. Two journalists were shot with rubber bullets, while others had guns pointed directly at them.
Journalists continue to face obstacles to obtaining information under the Freedom of Information Act ("FOIA"), which may be amended to address one exemption that is frequently overused by government agencies to limit access to records.
A recent study by the Associated Press showed that federal agencies have denied a growing number of FOIA requests each year under the current Administration. A practice that started in 2001 under President George Bush that encouraged agencies to deny requests under "Exemption Five" still continues today, despite being officially repudiated in 2009. Exemption Five was originally enacted to "protect the quality of agency decisions," but its scope in practice has grown exponentially. In 2013 alone, it was invoked 82,752 times to deny requests for information. In one example, the Department of Veterans Affairs cited Exemption Five in refusing to release the names of hospitals where veterans had died due to delays in diagnostic testing. The U.S. Congress has the opportunity to address this issue with the FOIA Improvement Act of 2014. The bill would address the excessive use and misuse of Exemption Five and would instate a public interest balancing test for assessing whether information should be released. It remains to be seen whether Congress will act on the bill.
James Risen's 2006 book State of War: The History of the CIA and the Bush Administration drew from a number of confidential sources, some of them employees of the CIA who allegedly leaked information without authorization. In 2008, the Justice Department began investigating Jeffrey Alexander Sterling, a former CIA agent, for what he had allegedly leaked to Risen. Sterling was indicted under the Espionage Act in 2010, and Risen was subpoenaed to testify concerning whether Sterling was one of his source.
Risen fought the subpoena. In July of 2013, the U.S. Court of Appeals for the Fourth Circuit ruled that Risen had no constitutional or common law right to refuse to testify as to the identities of his confidential sources, and that he was required to comply with the subpoena. In June, the U.S. Supreme Court refused to hear Risen's appeal from that Fourth Circuit decision. Therefore, if the Justice Department continues to seek to compel Risen's testimony, and he refuses to testify—as he has stated he will do—he faces the possibility of being jailed or fined. U.S. Justice Department officials have stated publicly that they do not intend to seek jail time for Risen.
The Department of Justice has incorporated new amendments to its media subpoena guidelines since they were finalized in February 2014. The Reporters Committee and a coalition of more than 50 news organizations recommended revisions to the guidelines, which were originally written in 1970, to apply specifically to journalists and were revised in 1980 to include third-party subpoenas. Under the new guidelines, it is more difficult for the Justice Department to withhold notice to a journalist or media organization when it subpoenas a third party, and it may not delay notice for more than 90 days. In addition, the Department may not invoke the "suspect exception" of the Privacy Protection Act—which allows the government to obtain a search warrant for material belonging to a journalist who is suspected of a crime—when the journalist is engaging in ordinary newsgathering activities and is not the target of the criminal probe. However, "ordinary newsgathering activities" is not defined in the regulations.
In March of 2014, Director of National Intelligence James Clapper issued a directive forbidding intelligence agency employees from discussing with the media any matter related to intelligence, even unclassified information. Penalties for violating this policy include termination and loss of security clearances, which would effectively end a career in intelligence. Employees who discuss classified information could face criminal prosecution. Only department heads, public affairs representatives, and others explicitly authorized may speak to the press. The policy has been criticized for not distinguishing between classified and unclassified information and for broadly defining the matters that may not be discussed. It forbids communication including "intelligence sources, methods, activities and judgments."
The directive is part of what members of the media community have recognized as a sweeping policy under the Obama Administration to control the information received by the press and to prevent leaks such as those by Edward Snowden and Private Chelsea Manning. Journalists have found it increasingly difficult to report on the Administration as many government employees refuse to talk for fear of reprisal. As a result, journalists are often limited to official statements and photo opportunities.
In June of 2014, more than 70 news organizations, including the Reporters Committee, sent a letter to the Senate majority and minority leaders, urging them to schedule a vote on the shield bill, but the U.S. Congress is unlikely to pass such legislation in the near future. Many states have shield laws that offer varying levels of protection for journalists who are asked to testify in state court or to hand over their notes. A federal shield law would provide some level of protection against those intrusions in federal courts. Specifically, the current version of the proposed federal shield law would provide a qualified privilege to journalists. They could be forced to testify under certain circumstances, including when the party seeking the testimony has exhausted all reasonable alternative sources of the information.
In a recent victory for electronic privacy, the U.S. Supreme Court ruled unanimously in June 2014 that police need a warrant to search the cell phones of people they arrest. While the decision specifically targets the phones of arrestees, its reasoning also applies to tablets, laptops, and possibly to information held by third-party phone companies. It has been over a year since Edward Snowden made public the revelations about the extent that the National Security Agency had been collecting people's phone and email data. That surveillance remains a major ongoing issue for the American public, including members of the media. Journalists have said that their awareness of the NSA's surveillance practices has changed the way they contact and communicate with sources, and in some cases has even prevented them from pursuing stories.
Some technological advances are helping journalists to communicate with sources concerned about being pursued for whistleblowing. A growing number of news organizations are signing on to use the open-source software SecureDrop, which allows them to securely accept submissions from anonymous sources. The software encrypts messages and documents received through the Internet so that their origins cannot be traced. Thus, a government investigator, for example, would not be able to identify the whistleblower who sent the information.
Following a pivotal court decision and a tentative rulemaking by the Federal Communications Commission ("FCC"), both advocates and opponents of net neutrality, or "open Internet," are waiting to see what will happen next. In a January of 2014 ruling, the U.S. Court of Appeals for the D.C. Circuit held that the FCC would only be able to regulate the Internet by classifying it as a "common carrier." Net neutrality advocates worry that, without regulation, Internet providers could charge higher rates for certain web operators, exclude certain content, or vary traffic speed for different types of content. In May of 2014, the FCC proposed changes to its rules, including requirements that Internet service providers offer a minimum level of access and that their practices not be "commercially unreasonable." The Reporters Committee joined with several other media groups to submit comments on the FCC rulemaking, encouraging the agency to maintain an open Internet. Given the large volume of news consumption that takes place online, a policy that would allow Internet service providers to discriminate on the basis of content would gravely imperil First Amendment rights.