The 'Libby Effect': Can you still keep your sources secret?

March 5, 2007 by

At this writing, the jury has yet to hand down a verdict in the trial of former White House aide Lewis “Scooter” Libby on charges of perjury and obstruction of justice. [Update: Guilty on four of five counts — Ed.] Whatever the verdict, one thing is clear, according Amy Ginensky, a partner at the Philadelphia law firm of Pepper, Hamilton, LLP who has tried many First Amendment cases: the Libby trial is “a subject that all of us who have any thing to do with the media need to do a lot of thinking about.”

Certainly, a lot of people are thinking about it, as evidenced, for example, by the discussion generated by Scooter Libby segment of the PBS Frontline series, News War.

OJR sat down with Ginensky to find out why she says that the Libby trial, “has changed journalism as we know it.”

OJR: You’ve said that “After this trial, even if privilege can be protected in federal and state courts, many may not perceive it.” What did you mean by that?

Ginensky: We all grew up in the “Deep Throat” era and thought that everything is protected and confidential. What we’re going to see, and I’ve already seen it myself, is lawyers – both on the civil and criminal side — thinking, ‘Oh reporters have to testify – that’s what the Libby case is all about. And it’s obvious that while there may be certain instances in certain courts where reporters have to testify, but in many states there are strong protections… shield law or common law protections. In federal courts there are still some protections, and some federal courts have been stronger than the DC court was.

So, I think lawyers’ instincts are going to be to serve a subpoena whenever they think journalists have information about anything – any information, whether or not it’s been published, whether or not it’s confidential, or whatever, they’re going to try to get reporters to testify.

Then I think you’re going to face the fact that sources have seen this group of reporters walk into the Libby trial and testify and be the number one and two and three witnesses against Scooter Libby. That is a position that I think reporters have always tried to avoid, to be a witness against people who are talking to you.

In the Justice Department, I think there has been a great reluctance to serve subpoenas on reporters – I think that’s changing. But… the fact that people think that the protections have been undone [doesn’t mean] that they have been undone.

We need to fight against that to the extent possible.

OJR: One of the extraordinary things about this case is that you have the White House and the prosecutor using the unprecedented tactic of getting sources to sign confidentiality waivers.

Ginensky: It is unprecedented. But what I have argued before is that the privilege is not the source’s; the privilege is the reporter’s. It doesn’t matter if my source is willing to speak, if I’m a reporter. It’s whether or not I will waive the privilege.

And I, as a journalist, have good reasons not to want to waive the privilege in addition to the source’s reasons, because it will chill the next source. I have won on that argument in both Federal and state courts before. Obviously this argument must have been made and did not work in [the Libby] case. If sources believe that their employers can get these waivers out of them, then they’re probably not going to be whistleblowers.

It seems to me that in the face of an attack like this, what we ought to do is to stand up and try to protect [reporters’ privilege] as much as possible, rather than lay down.

OJR: You say that there ought to be a conversation in every newsroom about the rules for granting confidentiality to a source. It’s been suggested that the practice of granting confidentiality has changed over the years from being an incentive that reporters sometimes use to coax reluctant interview subjects to being a privilege that sources expect and use to put out information for their own purposes.

Ginensky: I always understood, both from the dealings with journalists, and also from arguments that I’ve made in court, that it’s…used almost as a matter of last resort. We try to get people on the record, and not just take information off the record, because there are recognized dangers with this type of information.

And then, you may find yourself in a situation like Judith Miller, where you haven’t even published [your information] and you’re faced with having to try to protect somebody who you’ve really never tried to get on the record, and you put yourself, I think, in a bad situation.

OJR: This all comes about when the traditional interpretation of the Branzburg case is being challenged.

Ginensky: We’ve argued for years that the Branzburg case does not mean that there is no protection. But more and more courts – federal courts have found to the contrary. All the efforts to get federal shield laws are really important.

OJR: You’ve also suggested that reporters need to think about their methods and frequency of note-taking.

Ginensky: I think that each journalist needs to think about when they’re taking notes. There are journalists who always take notes – whether it’s on the record or off the record, and then they make a note afterward whether the conversation is on the record. And then they keep the notes, pretty much forever, and then they’ll be like Judy Miller – they’ll find them under desks, in shopping bags.

And that’s not a place you really want to be, because then you’ll have those notes being used to go against the memory of your source… Most sources are not likely to have that accurate a recollection, not because of anything nefarious, but because people just don’t recall the details of conversations. And given any time passage, most of us can’t recall. And so we have the journalists’ notes being used to impeach our source, and that’s a really terrible picture to put out there, and a really terrible position to put your source in.

So I think that people need to think initially, “Am I going to make notes for this conversation with this confidential source where there’s a likelihood I might end up in a battle about my notes?” Maybe you don’t make notes at all. Once you get a subpoena, you can’t get rid of your notes – that’s the destruction of evidence. So you have to think about it, I think, right from the beginning.

OJR: Many journalists hold on to their notes both in case there are questions, and because they might want to re-use the research for another project.

Ginensky: Right. And I’m somebody who defends a lot of libel lawsuits, and sometimes notes can be helpful. Most of the time, they could be helpful, but you’ve got to weigh the possibility of getting a libel lawsuit now against the possibility of a subpoena, and be thinking about these things ahead of time. You can never predict where your libel lawsuit is going to come from, nor predict where every subpoena is going to come from.

But in both instances, you can make some calculated decisions. I mean, I have been more surprised about libel lawsuits, but subpoenas – there are areas where people probably should think about whether they’re likely to get a subpoena. If you’re dealing with a whistleblower in a government agency, think about it ahead of time.

OJR: That gets pretty tricky when it comes to things like e-mail.

Ginensky: Yes, you have to worry about e-mails for your subpoenas; you also have to worry about your phone records, because there have been subpoenas to phone companies where you don’t even have control. Then, the fact that there is this phone record with you and this confidential source could reveal the confidential source. So you might want to think about some way to communicate other than the telephone. Hopefully, it won’t involve getting in the basement or parking garage like Deep Throat!

OJR: You’ve said the credentialing of bloggers to cover this trial is also significant.

Ginensky: The credentialing of bloggers is significant because it places them on a similar level as mainstream journalists. However, this event also raises some questions about the treatment of bloggers. For example, if they are treated as journalists, then will the standard of conduct practices that applies to journalists be applied to them as well in relation to liability issues? If you are considered a journalist, then you’re going to be held to a journalist’s standard of care in a libel lawsuit. I would suspect not all bloggers know much about the standard of care of how other journalists work. On the other hand, if they are considered journalists under shield laws, then, to the extent that they have confidential sources and the statutes that protect them, that’s a good thing.

OJR: Given what you’re saying, anyone who’s going to do journalism really has to have access to quality legal advice. When it comes to solo journalists, bloggers and small publishers, you’re not available.

Ginensky: Right, and I don’t have an answer for that. I would think for a lot of bloggers, it means getting insurance. I worry about risk, and I can’t say I have an answer for that. In terms of how they protect themselves, there should be a lot of reading and discussion. I would think that journalists who are in newsrooms. If they say to somebody, “I’ll protect you and give you confidentiality,” are they really willing to go to jail for that person? That’s a real problem, I would imagine.”

Whatever the verdict, we’ve all been sentenced to deal with a new with a new way of thinking about this, and the recognition that sources are going to think of it differently, and courts of going to think of it differently. In my view, we shouldn’t give up, but we should be proactive in the steps we take.

Filed Under: Uncategorized Tagged With: , ,

Your rights as an online journalist: what will 2007 bring?

January 5, 2007 by

With a new year and a newly Democratic Congress, the atmosphere of American political discourse is thick with auguries of change. What might those changes mean for online journalists? We queried experts in constitutional law, copyright and ethics for a forecast for online journalists in 2007.

Some of the experts we spoke to registered their strongest concerns about the Bush administration’s aggressive stance toward journalists. “George Bush is exceedingly bad news for this country on almost every front, and one of those fronts is his contempt for the press,” said David Rubin, Dean and Professor of the S.I. Newhouse School of Public Communications at Syracuse University. “He and his Justice Department, prosecutors, and the whole tone that he has set – are more than willing to use the subpoena power to get sources and get confidential information and basically, in his view, put journalists in their place.”

However, John Hartman, a journalism professor at Central Michigan University, predicted that in 2007, “The Bush Administration will be forced to back off on and drop its investigations and intimidations of journalists and news organizations as it is forced to spend time defending itself from various Congressional investigations, including those that might be preludes to impeachment.” Indeed, there are news reports saying that the President is beefing up his legal team in anticipation of Congressional investigations.

As critical as he is of the President Bush’s actions, Rubin doesn’t share Hartman’s expectation of change; “I don’t think anything changes him.” Rubin said it would not surprise him to see more journalists jailed in 2007: “Not only ultimately jailed, but more subpoenas for information, more subpoenas of phone records – whatever tactics [Attorney General Alberto] Gonzales and the Justice Department can come up with, they will.”

Hartman said a Congress led by Democrats will generally be more supportive of press freedom, and may even be open to passing a federal shield law, such as the Free Flow of Information Act sponsored by Sen. Richard Lugar (R-Ind.). Hearings were held on the bill last September, but “Congress might pass a federal shield law, but Bush would veto it under present circumstances,” Hartman wrote. “If he decides to govern from the middle and try to repair his public opinion ratings, Bush might allow it.”

But Rubin disagreed, noting, “[T]his is an issue that the Senate and the House have considered regularly since 1972, since the Branzburg case. So that’s almost 35 years ago, they haven’t done it yet. The situation is now far more complex than it was in 1972, now that you have online journalists and bloggers, which raise definitional issues. The mood of the country is not nearly as supportive of journalists as it was back then. The Congress has so much else on its plate this year, and it’s likely to be a highly contentious place that I just don’t think this is going to rise to the surface as an issue to consider. For all of those reasons, I would be shocked if a federal shield law was passed next year.”

In fact, according to a blog entry by CBS News legal consultant Andrew Shelton, Lugar’s bill died in committee last year precisely because Justice Department lawyers wanted to be able to compel reporters’ testimony in the forthcoming trial of Lewis “Scooter” Libby, who is charged with perjury and obstruction of justice in the illegal disclosure of the identity of CIA operative Valerie Plame.

In the area of copyright law, while big changes are not expected, there are still “many issues, both in terms of journalists reproducing content from copyrighted sources and, more significantly, having their work reproduced without permission,” said Jon Garon, Dean and Professor of Law at Hamline University School of Law in St. Paul, Minnesota. Those issues range from common internet practices that can expose journalists and bloggers to charges of copyright infringement to steps that online media producers may need to take to protect their work.

For example, bloggers frequently embed video or audio from sites such as YouTube or Odeo. But Garon said that even when the original source of the content is acknowledged, those bloggers may still be subject to charges of copyright infringement. While portal sites such as Google Video require that people uploading video to their site attest to their rights to the content they post, Google can’t guarantee that the posters are telling the truth. Someone who republishes that content without a demonstrable effort to prevent infringement can still be sued, Garon said.

Of course, most journalists use copyrighted material under the “fair use” provisions of U.S. copyright law. Those provisions allow for the republication of small portions of a copyrighted work for such purposes as news reporting, comment or criticism, or classroom teaching. The fair use doctrine has a long and venerable legal history, but Garon warned “the parameters of fair use are inherently fact-specific.” Further, as OJR reported last February, some experts are concerned that the improper use of cease-and-desist letters by copyright holders has caused online content to be removed.

According to Garon, one copyright issue that caused some controversy in 2006 will likely be ignored in 2007. That’s the law governing “orphan” works – works published before 1923 for which there’s no apparent copyright holder. Under current law, these orphan works are still under copyright – and anyone who uses them risks a lawsuit. In 109th Congress, Rep. Lamar Smith (R-Tex.), then chair of the Intellectual Property Committee of the House of Representatives, introduced the Orphan Works Act of 2006, which would permit their use when it can be demonstrated that a good-faith effort has been made to contact the copyright holder. Under fire from organizations representing professional photographers and others, Smith ultimately withdrew the bill from consideration, despite support from the American Library Association and others.

As to ownership issues, according to Hartman, “deregulation that would result in the lifting of cross-ownership restrictions is less likely to happen as Democrats are less comfortable with media conglomerates. Yet Democrats might support legislation that would make it easier for newspapers to survive and allow cross-ownership in circumstances where the newspaper would fail otherwise.”

Bloggers faced new legal challenges in 2006, both in the United States and internationally. Josh Wolf landed in federal prison for refusing to turn over unpublished video of a demonstration to a California grand jury. Hao Wu, who was imprisoned for five months by the Chinese government, apparently in connection with video that he was shooting for a documentary about underground churches in that country. Libel suits against bloggers are on the rise. And in December, an Australian court ruled that linking to copyrighted sound recordings can be illegal if it makes it easier to gain improper access to that material.

For Robert Cox of the Media Bloggers Association, these developments illustrate that many bloggers perform the same newsgathering functions as professional journalists, and thus require the same level of education, access and legal protection. His organization has spearheaded a training and certification program that would ensure that bloggers understand and adhere to high legal and ethical standards. MBA has negotiated agreements that will allow certified bloggers to obtain press credentials to cover such events as government press conferences and briefings.

Finally, “there’s something that’s extremely important in all of this, and it almost never gets talked about, Cox said. “Let’s start with this: Freedom isn’t free. If you’re going to publish – and bloggers are publishers – and you can’t back up what you’re writing with lawyers and resources to pay for all of that, you’re not going to last very long.” That’s why, Cox said, the MBA is negotiating with the insurance industry to offer liability insurance that bloggers can tap in the event of a legal fight. “As blogging and citizen journalism develops over time, you need to have access to this kind of support.”

Filed Under: Business Tagged With: , ,

Governments jailing more Internet journalists

December 8, 2006 by

A new report from the Committee to Project Journalists finds that increasingly, online journalists are being imprisoned for their work, causing an increase in the number of incarcerated journalists for the second straight year. CPJ said that as of December 1, 49 of 134 imprisoned journalists worldwide work via the Internet — the highest number in that category since CPJ began keeping records in 1997. Print journalists remain the largest category of imprisoned journalists; 67 print reporters, editors and photographers are behind bars, CPJ said.

China, Eritrea and Cuba top the list of governments responsible for jailing journalists, but the United States is responsible for incarcerating two journalists without charges, as part of the War on Terror. Bilal Hussein, a free-lance photographer for the Associated Press, has been held by US Security forces since April 12, 2006. Al-Jazeera cameraman Sami al-Haj was arrested December 15, 2001 by US forces in Afghanistan; he is currently held at Guantanamo Bay.

According to the 2006 Press Freedom Index compiled by another journalists’-rights group, Reporters Without Borders, the United States’ treatment of journalists placed it at 53rd on its press freedom list, tied with Botswana, Croatia and Tonga. China, Cuba and Eritrea ranked 163, 165 and 166 on the list, making them the countries with third, fifth and sixth most repressive records in the area of free expression. When the RSF began producing its list five years ago, the US rank was at 17.

Abi Wright, CPJ’s communications director, spoke to OJR about the new study of jailed journalists:

Wright: I think the rise in the number of Internet journalists on our prison list this year is startling, and reflective of trends that we’ve been following since 1997, when we documented the first jailing of an Internet writer. I think there’s two things going on. First of all, there are more people writing and doing journalism online. Secondly, the perennial offenders, China and Cuba , in particular, are just saying an increasing, or ever-present, I should say, intolerance towards reporting and dissent in any form, and online in particular.

OJR: You’ve pointed out that one in three of the journalists now in jail is an Internet blogger, web-based editor, or online reporter, and a large number of these people are not necessarily paid journalists, but citizen journalists?

Wright: Exactly. The nature varies from country to country. In countries like China, access to work as a journalist is very restricted. There’s party membership and all kinds of memberships required and it’s highly regulated and restricted. Writers and citizens have found the Internet to be one way that they can get information and transfer information. In Cuba, which is a slightly different example, a lot of journalists whose work ends up online, they actually telephone or transmit the information through different means, but it ends up being published online because they have no other way of just doing journalism there through official routes. So it’s reflective of the media environments in all of those countries.

OJR: Many of the people you are talking about are being held in secret locations and without charges. How do you get information about what’s happened to them?

Wright: Well, that is another sort of regrettable trend that we have documented, that 20 of the journalists on our imprisoned list this year, or 15 percent, are being held without charge. We have sources in countries like Eritrea, where we are able to verify information about journalists there. But it’s very difficult. We have reports that [several journalists held in Eritrea] may have been killed or may have died since they’ve been in prison. So, it’s challenging to get information about them, but it’s a real priority for us, absolutely. Journalists like [AP] photographer Bilal Hussein, and the cameraman for al-Jazeera, Sami al-Haj, we work closely with news organizations who have had employees detained to get information. And we also appeal directly to the US government about these cases.

OJR: Have international human rights organizations, the Red Cross, the UN or similar organizations been able to get to these people to verify their well-being?

Wright: In the case of Sami al-Haj, I know his lawyer has been in touch. He has a lawyer who is in communications with him. Communication with Bilal Hussein has been more problematic. He’s been held since April. We have called repeatedly on US authorities to make public the information that they allegedly have on these individuals and to either charge them, or release them. Different officials have assured us that they have evidence of some activity that could be seen as criminal, but we just don’t know what that is.

OJR: Leaders of the new Congress that will take office in January have promised new investigations into various aspects of the conduct of the War on Terror. Do you know whether the treatment of journalists will be part of that investigation?

Wright: I don’t know whether the treatment of journalists or international press freedom will be an issue for them, but I can tell you that during the confirmation hearings for [newly-confirmed US Defense] Secretary [Robert] Gates, Senator Warner of Virginia specifically asked about journalists’ safety, and mentioned CPJ. So we know that it is on lawmakers’ minds. And we are certainly doing everything we can to make sure that the situation for journalists, especially imprisoned journalists, in countries like China, Cuba, Eritrea, and also of course, those in US custody — that these cases are brought to the attention of lawmakers.

OJR: One case that CPJ has expressed concern about is the murder of Brad Will, an independent journalist who was gunned down October 27 while filming a protest by striking teachers in Oaxaca, Mexico . Some have called for the US to get involved in the investigation. What’s CPJ’s position?

Wright: My understanding is that the most recent development in that case has been very disturbing — the individuals who were arrested and charged with his murder have been set free.

OJR: Right.

Wright: We’ve been very active in Mexico, where there has been a string of murders, especially along the [US-Mexican] border area, where there’s known drug trafficking. We called on Mexico to appoint a special prosecutor for crimes against journalists. Under Pres. Vicente Fox, such a prosecutor was appointed, and I know that there is momentum to bring these crimes to a federal level, which would help expedite the prosecution of these cases. So from CPJ’s standpoint, we are pressuring Mexican authorities to bring those responsible for the murder of Brad Will to justice.

OJR: Any final thoughts that you hope readers will take away from this report.

Wright: I think it reflects a real change in the journalism landscape, when you have the second category of journalists behind bars being online journalists that shows a tremendous growth over the last decade. I think there’s no question. I think there’s no question, especially in Western democracies, but also in these other growing developing countries, that the Internet is a major conduit for information, and it will continue to be so. We will be fighting government attempts to crackdown on this as much as we can.

When the Internet was formed, the idea behind it was that it would be impossible to control and to censor. These governments are challenging that notion. I think it’s important for groups like CPJ and other members of the online community to remain vigilant in publicizing these attacks on journalists.

Filed Under: Reporting Tagged With: , ,
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