Appeals court rules journalists can’t keep their sources secret

http://rt.com/usa/nyt-risen-leak-espionage-336/

by JumpCrisscross • 13 years ago

108 99 13 years ago

swombat• 13 years ago

"Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law," Obama said during a May 23 address after those scandals first surfaced.

I find it hard to reconcile that with the Obama administration's attitude to Snowden, Wikileaks, Assange, etc.

bobwaycott9• 13 years ago

Now, with Snowden, Obama has charged 8 people under the Espionage Act, whereas it was used only 3 times before his administration.

There is something systemically wrong happening behind closed, classified doors.

jcromartie• 13 years ago

happening behind closed, classified doors

My friend who works in the intelligence community assures me that if we only knew the kinds of bad guys they are secretly protecting us from (e.g. another Boston Marathon bombing every week) we'd be thankful. I don't believe him.

The gov't loves to trot out every single foiled terrorist as a victory of their systems. The gov't isn't quietly foiling terrorist attacks left while it's just too humble to say so.

Or maybe there's some reason to keep a foiled attack a secret?

tptacek8• 13 years ago

Here are the people besides Snowden who have been charged under the espionage act by Obama:

https://news.ycombinator.com/item?id=5701813

In subsequent discussions it's become evident that even the Kiriakou case isn't as cut-and-dry as it seems.

mtgx• 13 years ago

I don't know if he's a sociopath or a pathological liar. But he seems to be doing the exact opposite of what he's saying in public. He seems pretty shameless about it, too. I mean he likes to talk a big talk about civil liberties, like he's some kind of Martin Luther King on TV - and then the next day he's acting like Nixon or McCarthy or worse.

And even if he appears to be doing something right, what he's doing actually has an evil intent, like I hear those new DoJ policies that are meant to "protect" the press, actually have a pretty narrow definition of the press, so that not everyone falls under that category and only certain journalists. So he's basically limiting the 1st amendment through these policies, at the executive level.

tptacek8• 13 years ago

Well, this is a super helpful comment. Let's have a discussion about whether President X is a sociopath or a liar!

bobwaycott9• 13 years ago

This has got to stop.

This administration is walking all over civil liberties and constitutionally protected freedoms. It is turning way too many citizens into enemies of the state. And where not charging them as such, it settles for treating them as such.

The branches are not keeping each other in check, either. Instead, they continue to allow themselves to be complicit in violating the consent of the governed, fighting over useless, divisive issues (let's break the country's arm to control everyone's sexuality), and tossing away the constitutional protections we've grown far too accustomed to taking for granted.

This is unacceptable.

ars2• 13 years ago

There isn't, and never was, any protection for journalists.

Journalists wanted to believe there was, and frequently acted as if there was, but there isn't. This is just affirming that well known law.

Now you might say it would be a good thing if such a law exists, and journalists certainly think so - and would have an easy time spreading their message. But as is no such law exists.

kgarten• 13 years ago

This depends on how you argue ... some lawyers think this is covered under the freedom of expression. As far as I know there is also some international law covering the protection of sources. Yet, I'm not sure and have no clue about law :)

EGreg2• 13 years ago

There is also no law that says the government can't seize phone records, email, etc. from 3rd party providers.

Let's face it ... any kind of laws like this are just delaying the inevitable, which is that organizations will keep any data they can, whether they are private companies like facebook, or governments.

So how about instead we push for greater transparency in everything? If journalists are required to reveal their sources, so should the NSA and CIA. Stop with the "national security" excuse to take away civil liberties. In this day and age, classified intelligence secrets may be more damaging than helpful, the same way that patents are more damaging than helpful in a fast-moving industry like software.

ams6110• 13 years ago

Have journalists even really believed there was? I am not a journalist, but know of the tradition of reporters protecting their sources. IIRC several have famously gone to jail for contempt of court rather than reveal a source. So I'd be surprised if any journalists thought there was a legal basis for refusing to disclose a source if ordered by a court to do so.

DannyBee• 13 years ago

So, there is, but it's not a constitutional privilege, and not federal law.

About 40 states have what are called "shield laws", that give various forms of journalism protection.

The closest you get federally is Branzburg v. Hayes, where the reporter lost and was forced to testify. In it, the supreme court established a test for when you could force journalists to testify.

The DOJ also has self-imposed guidelines on journalist privilege that they try to follow.

People also think there is a doctor-patient privilege, but that doesn't exist federally either (yet exists in many states).

rayiner2• 13 years ago

Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?"

Indeed, keeping sources secret cuts against the common law evidentiary practice that was typical at the time of the founding. Common law courts have sweeping powers to force people to hand over evidence in their possession using subpoenas, with just a few limitations (5th amendment self-incrimination, etc).

The Wikipedia page for an older journalist privilege case gives a good description: http://en.wikipedia.org/wiki/Branzburg_v._Hayes

Floyd Abrams, noted 1st amendment lawyer, had this to say about the case: "[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. Notwithstanding the strong policy arguments in favor of establishing this privilege and the serious harm that would be caused by its absence, no such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best."

coldtea3• 13 years ago

Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?"

Remind me where in his comment he said it was in the Constitution?

What he said was: "This administration is walking all over civil liberties and constitutionally protected freedoms".

"Civil liberties" and "constitutionally protected freedoms" being two different (if somewhat joined) sets.

Second, it can very convincingly be argued that the taking away of such a protection is bad, regarless of if it was in the Constitution or not. (Depending on your stance on the freedom of the press and it's ability to keep those in power in control, of course).

The heart of the issue is not if it was in the Constitution. That's a pedantic issue, irrelevant in a democracy. The items in the ammemndements weren't in the Constitution either. And if the right to own slaves had been in the Constitution, few would argue for it remaining there, some centuries years later.

The core of the issue is: do people WANT such a protection or not? And do people feel that they explicitly taking of the table is bad or not?

lisper• 13 years ago

Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?"

Amendment 9: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

bobwaycott9• 13 years ago

Seriously, the snark isn't required. My comment said nothing about a constitutional protection for journalists not being compelled to divulge sources by the courts. My comment said nothing about specifics of constitutionality in the particulars of this case. I see issues, but I did not suggest what you've interpreted.

Since the NSA issues broke, you've recently popped on my comments in much this same way—read more into a statement I've made than is there, and just run with giving legal commentary only tangentially related because you've zeroed in on the way you've interpreted the words, instead of clarifying if your interpretation matches my intention. Maybe that's just what lawyers do. I really appreciate your commentary and expertise. But would you mind maybe exercising a bit more restraint? Is it going to kill you to pose a non-snarky question asking if the way you've interpreted my statement is correct?

I've established elsewhere that I am not a lawyer, but trained in philosophy, and particularly political theory, instead. When I comment on things, it is from that perspective, not from a juridical precedence perspective, like you. If you want to engage the philosophical issues, cool. If you want to engage practical issues with the philosophical ones, cool. If you want to challenge points with problems posed by legal precedence and practice, that's awesome, cos I love that stuff (I appreciate the mention of Floyd, as it reminds me to pick up his work). But we've interacted enough in the last few weeks that I'd enjoy it far more if you made sure I was making a statement about legal precedents before attributing them to me with snarky callouts.

a3n• 13 years ago

Remind me where in the Constitution it says ...

There's a lot that the Amendments, including the First, don't say. They are not literal descriptions of what specifically is and what specifically is not allowed. They set the tone for the kind of things that should and should not be allowed.

When you judge a practice, or a law, against the First Amendment, you don't look for that specific practice in the text, you judge how much that practice supports or opposes the amendment.

The amendment does specifically mention the press, in a general way. The press does need information to function, and discouraging access to that information would tend to weaken the amendment. Which is why we're seeing credible discussion today that the NSA's dragnet metadata collection violates not only the Fourth Amendment, but the First, because the collected metadata is data mined for associations, which could tend to discourage and punish (room for discussion) "the right of the people peaceably to assemble."

malandrew• 13 years ago

Is the notion of possession limited by jurisdiction?

If the reporter lives in the US, but does all his or her computing over ssh to a server in another country, that means that all the evidence is outside US jurisdiction. They don't possess the evidence, merely access it.

transfire• 13 years ago

Does that make it a crime for a journalist to take the 5th?

girvo4• 13 years ago

In Australia at least, yes. Many have been found in contempt of court and jailed because of it. Does the right to not self incriminating extend to incriminating your source?

lukifer4• 13 years ago

You cannot be compelled to testify against yourself (or your spouse, law client, etc), but you can be compelled to testify against someone else, which is how subpoenas work.

vacri• 13 years ago

Australia doesn't have a '5th' to take in the first place. It can be used against the common citizen that they refused to talk to police or to testify in certain circumstances. It's not going to prove that you're guilty, but it is allowed to add context.

http://en.wikipedia.org/wiki/Right_to_silence#Australia

This being said, since the internet came of age, Australian journalists have hardly been behaving in a way that would suggest they deserve increased protections...

sigzero5• 13 years ago

It does not extend to your source. You invoke the 5th only for yourself.

_delirium4• 13 years ago

No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying.

They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime.

In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.

betterunix• 13 years ago

"However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime."

Unless they are being charged with conspiracy:

http://www.washingtonpost.com/local/a-rare-peek-into-a-justi...

argumentum• 13 years ago

"Journalists" are not given special rights by the 1st amendment, which states that all of us are entitled to freedom of the press (not freedom for the press).

In the internet age, we are all journalists and therefore we should all have the right not to reveal our sources for what we publish.

rustynails77• 13 years ago

Who will now want to whistleblow on the government for illegal activities, when the NSA will strongarm any media that you speak to?

This will actively encourage corruption.

belorn• 13 years ago

Foreign countries? Its common practice in China, Russia and other similar countries that anti-regime reporting is done outside the border. PRQ (the ISP of the pirate bay back in 2006) was hosting several similar news papers, as Sweden was seen as a haven for activities demanding common carrier principle. Now days, I guess Iceland has taken the primary role for such.

aci3ghsf• 13 years ago

The First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The implied distinction between freedom "of" the press and freedom "for" the press is sophistry. See http://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_Uni... for several important examples demonstrating this.

Symmetry• 13 years ago

I looked and couldn't find anything indicating journalists had privileges beyond those held by other citizens.

girvo4• 13 years ago

Jesus christ. I argued for a Bill of Rights while participating in Youth Parliament here in Australia, and used USAs typically strong defence of freedoms as my evidence.

And now all of that has been systematically ignored and weakened over the past few years (of course, it could have always been like this and I just hadn't noticed). It's a dammed shame, and I am no longer excited about possibly moving to Silicon Valley: I don't think I'll move at all anymore.

ars2• 13 years ago

There never was this sort of freedom for journalists. The fact that you think so is just a testament to how easily journalists can spread their messages.

They always wanted there to be such a law, but there isn't and never was.

I am not saying it might not be a good thing for this to be the law, I'm just saying it never existed.

sigzero5• 13 years ago

You are right, it never did. Yet almost every movie involving scenarios of lawyers and sources has it. As does any TV show and book. It is deeply ingrained in our thought process yet it is wrong (from the point of view their is no such protection). It is kind of amazing when you think about it.

jasonlotito4• 13 years ago

Well, that's not entirely accurate. Many states have shield laws. They just don't apply at the federal level.

girvo4• 13 years ago

Oh, of course. I feel that there should be, however :)

gngeal• 13 years ago

Well, journalists will have to come up with a way of having people send them scoop without revealing who the scoop senders are.

steevdave• 13 years ago

Wasn't something like that published recently?

Kliment• 13 years ago

Are you referring to strongbox? Strongbox only works if the institution operating it cannot be compelled to sabotage it.

jaggederest• 13 years ago

The traditional way is mixmaster remailing - mail a letter containing a letter, with instructions to remail the innermost letter, in blind cover. It's a physical instantiation of the way Tor works, and the way early email mixmasters worked. You can use additional 'hops' if you are worried about it.

http://en.wikipedia.org/wiki/Mixmaster_anonymous_remailer

That said, the problem is that most of the time the data you're sending outs you in some way.

seliopou2• 13 years ago

Articles about court cases should properly cite the case and link to the decision. For court case that went on for years and involved reams of documents entered into evidence, something's probably gonna get lost in the reduction to a couple paragraph summary. Isn't it weird that nobody reads court documents before railing against the outcome? It's not that hard to read the opinion and dissent, identify the judges' perspectives, and follow their arguments. Even if you have no background in constitutional law or relevant statutes, you can pick it up as you go along.

Anyways, since I can't find the decision I can't really figure out whether I should complain and do nothing about the court or the law.

socillion• 13 years ago

Here's the decision: http://legaltimes.typepad.com/files/sterling-ruling.pdf

It's 118 pages, have fun.

I found it at http://www.emptywheel.net/2013/07/19/fourth-circuit-guts-nat...

seliopou2• 13 years ago

Thanks.

The nice thing about court cases is that they're divided nicely into parts that consider different questions before the court. You also get an entire section called "Background" which I hear is useful.

But even before you get to the background, just by reading the first page, you get a more nuanced view of what's going on. The decision's split up into seven parts, of which only part I and VI saw unanimous agreement. Judge Gregory dissented for parts II-V, and Judge Diaz wrote his own opinion for part VII, concurring in part and dissenting in part. Also, you can see that in some questions, the lower court's affirmed, in others it was rejected, and some questions were sent back to it.

What other nuance can we pull out of this from reading just a few more sentences?

noonespecial• 13 years ago

"Journalist" has always been a bit of an artificial distinction. Members of the press don't get special rights for being so. The most they may have gotten in the past was special access.

This clearly shows two things. We've all been journalists all along and we never really quite had the rights we thought we had.

quahada• 13 years ago

Agreed. Whether journalists are legally allowed to protect their sources or not, this right (or lack thereof) needs to apply to all citizens. Otherwise, we would have created a new class of people who have different constitutional rights than others.

How can the legal system selectively allow some people the right to protect sources and not others? Who gets to decide who's a journalist? Do we draw the line at establishment reporters? Or do we allow full-time bloggers? What about part-time bloggers? What about if someone's never blogged before, but suddenly has something to say?

Andrew_Quentin• 13 years ago

Well he can go to the witness stand but stay silent, i.e No Comment. He can be asked questions, but surely he can't be compelled to answer them.

mseebach2• 13 years ago

Then he's getting locked up for contempt of court because he's refusing to comply with a lawful order from the judge.

GrinningFool• 13 years ago

Indeed. And there is a long and respectable history of journalists doing just that:

http://www.rcfp.org/jailed-journalists

The list is neither exhaustive nor particularly recent, but certainly it shows this is nothing new - there has never been protection for journalists who will not comply with a court order to reveal their sources.

The good ones will refuse to reveal them anyway, and face any consequences.

jasonlotito4• 13 years ago

Yes, and that's what journalists want to mean when they promise to protect their sources.

Now, a state might have a shield law (I believe most do), but they don't apply at the federal level. Anyways, that there is not federal shield law is why journalists generally make a big deal out of them protecting their sources. If it was a matter of course, a protection they were guaranteed, then it really wouldn't be a big deal. It would be a meaningless platitude.

Steko3• 13 years ago

Freedom of the press protects the right of the press to publish things.

It does not[1] protect any agreements made to secure that publishing. If you guarantee your source anonymity or a million dollars and you later can't deliver because someone emptied the bank account or eavesdropped or a court compelled you to testify, that has nothing to do with your right to publish. It may affect your ability to publish but so do locked doors and I don't see anyone saying freedom of the press should trump trespassing rules.

If bystander Amy is witness to Bob's crime and subpoenaed and under oath she can either tell the court the truth of what happened, perjure herself or not answer and be held in contempt. Freedom of the press, attorney-client and doctor-patient privileges should provide zero protection here.

[1] Generally in the US. Many states have shield laws and protected in various other countries.

http://en.wikipedia.org/wiki/Protection_of_sources

http://en.wikipedia.org/wiki/Shield_laws_in_the_United_State...

jimktrains23• 13 years ago

It has been held by many courts that the ability to keep sources secret aids in the flow of knowledge to the public and allows the press to function.

Floyd Abrams has an entire chapter on it in "Friend of the Court."

Steko3• 13 years ago

It certainly aids in the flow of knowledge to the public but so would a lot of clearly not allowable things like hacking celebrity phones.

eigenvector• 13 years ago

What is unprecedented and disturbing is the classification of releasing information to the (American) public, whether that be through the New York Times or Pastebin, as aiding the enemy.

Unauthorized leaks have never been legal but in the past even the government has understood that these people are a far cry from being enemy agents.

grandalf• 13 years ago

This kind of thing proves how much of a genius Osama Bin Laden was when he planned the 9/11 attacks. He knew we would throw away our values and move toward totalitarianism.

With the massive surveillance apparatus in place, US journalists scared to cover many of these stories that RT covers, etc., the US is one attack away from instituting a much more overt police state.

Peter King is one attack away from the White House.

In the midst of all this it's amazing how little dissent there is. I used to think it was mysterious how things like Nazi Germany could have happened, but now I think it's clear that it just takes a series of small steps in the wrong direction, and none of the actors have to be overtly evil.

quasque• 13 years ago

This is not quite true - they still can keep their sources secret, but under the renewed threat of being charged with contempt of court.

Whether or not this causes a sufficiently chilling effect on whistleblowing within the US, or reporting on it, remains to be seen.

znowi• 13 years ago

The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise.

I hope they hold the same opinion of NSA agents.

ivv• 13 years ago

Interesting how Russia Today is doing to the US what Radio Liberty and Voice of America did to the USSR thirty years ago.

EGreg2• 13 years ago

So the fourth estate now can't keep their sources secret ...

Funny because the executive branch seems to like their secrets so much, they will work to set up secret courts with secret laws just so the secrets don't get revealed to the public. And they will go to great lengths to pursue those that reveal those secrets. "Trust us, we followed due process and our actions have been authorized by a few secret courts."

But journalists? Hey they are just "citizens." After all who cares that this will severely hamper anonymous sources to the media?

venomsnake• 13 years ago

The moment a journalist is compelled to reveal a source with the whole profession is over except tabloids, Fox News alikes and other works of fiction?

It is not about just journalist we need broad third party protections for information possession.

After all the whole idea is the government to not have the things too easy.

Appeals court rules journalists can’t keep their sources secret

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