Source secrecy in the modern era

My June column for the South Carolina Press Association:

The Justice Department’s accessing of reporter Ali Watkins’s email and phone records as part of a leak investigation is just one of several recent incidents in which the federal government has obtained the digital and other information about journalists’ activities in order to identify confidential sources.

 
But it also reveals a truth that media lawyers have known for a long time: if there is any third party involved in a communication that has a record that the communication occurred—like a cell phone company, which keeps records of calls and messages sent and received for billing purposes, or an internet access provider that tracks emails and websites—the government can access that information relatively easily, and use it to discover a journalist’s contacts and sources.

The legal theory is that since the reporter is willingly sharing this information with a third party—the phone company, or the ISP—there is no reasonable expectation of privacy in this information. Also, such entities are likely to provide this information in response to a subpoena without raising privacy or First Amendment concerns.

The latest case involves the phone and email records of Ali Watkins, who had a meteoric rise in journalism, starting as an intern with the McClatchy Washington Bureau in 2013, and working at The Huffington Post, BuzzFeed and Politico before joining The New York Times in late 2017. She was part of a McClatchy team that was a finalist for the Pulitzer Prize in 2015.

Her records were obtained by the Justice Department as part of its investigation of long-time Senate Intelligence Committee staffer James A. Wolfe, who has pleaded not guilty to charges of lying to the FBI about his contacts with various reporters, including Watkins.

The case is complicated by a three-year personal relationship between Wolfe and Watkins. Because of this relationship, the Justice Department did not follow its usual policy of informing a reporter before obtaining the reporter’s phone and email records, which gives the journalist an opportunity to challenge the effort in court. Watkins was not informed until after the Justice Department obtained her records. The records of three other reporters to whom Wolfe is suspected of leaking information were not subpoenaed.

The policy of informing reporters of records subpoenas was adopted by then-Attorney General Eric Holder during the Obama Administration, after several instances where journalists’ phone, email and other records were obtained in a variety of leak investigations. In 2013, it was revealed that the Justice Department had obtained call logs for 20 separate Associated Press phone lines.  Overall, the Obama Administration brought criminal leak charges against government employees in nine cases, more than all prior administrations combined.

The accessing of Watkins’ records has revived calls in Congress for adoption of a federal shield law statute which would protect journalists from being forced to reveal confidential sources under many circumstances. Despite the lack of such a law, several federal courts recognize such a privilege to some extent, as do courts in all but two states: Hawaii and Wyoming.

But even when these laws apply, they only generally protect reporters from being forced to reveal the identities of sources to whom they have promised confidentiality. They do not stop law enforcement agencies from using other sources of information to determine who the source likely is.

For example, the Obama Administration Justice Department prosecuted Stephen Kim, a State Department expert on North Korea, for leaking information to New York Times reporter James Rosen. Kim was identified as Rosen’s source not by subpoenaing Rosen; instead, the Justice Department obtained Rosen’s phone records and email records, and used records of Rosen’s and Kim’s comings and goings from State Department headquarters as indicated by their security badge swipes, to determine that Kim was Rosen’s source. (Kim later pleaded guilty and was sentenced to 13 months in prison.)

So what about the old fashioned way of contacting confidential sources: meeting in person, as in the clandestine meetings in an Arlington, Va., parking garage between Bob Woodward and confidential source “Deep Throat,” depicted in All the President’s Men?  If either had a cell phone and left it on, their movements could be traced. And there are likely to be multiple security cameras on the surrounding streets, and in the garage itself, that could be used to identify the reporter and the source.

Use of any electronic communication leaves a record that can be accessed. Any physical movements can be tracked by our electronic devices, and ubiquitous surveillance. The bottom line is that it is much harder to ensure source confidentiality in the modern era. And reporters must keep this in mind as they do their work, and the risks that they and their sources are running.