reporters privilege

This week is sort of the high holidays for media-law attorneys: Media Law Resource Center’s annual meetings, a communications law program at Practising Law Institute and several other events. There was a fascinating discussion Thursday at PLI on reporters’ privilege with several general counsels of major medial companies.

New York Times reporter James Risen, who the Fourth Circuit has ruled must identify a confidential source in the case of a former CIA agent suspected of being a leaker, should seek certiorari with the U.S. Supreme Court--otherwise he may have to go to jail to protect his unnamed source, said Lee Levine, a leading First Amendment lawyer with Levine Sullivan Koch & Schulz.

But Levine said he does not think that the U.S. Supreme Court would take the case.

If the U.S. Supreme Court takes the case, there could be five votes in favor of recognizing a qualified common law privilege for reporters’ confidential sources, Levine said. Justice Anthony Kennedy would be the key vote, he said.

Justice Stephen Breyer, who often votes unfavorably on First Amendment issues, might vote in favor of recognizing a qualified common law privilege because he favors balancing tests in his jurisprudence, Levine said.

David McCraw, vice president and assistant general counsel for The New York Times Company, said there will never be an ideal test case on reporters’ privilege and he fears the next test case would be brought by a "blogger in a bathrobe.”

Karen Kaiser, associate general counsel for The Associated Press, said the "time is now to bring these critical principles to the forefront."

Barbara Wall, vice president and senior associate general counsel for Gannett and who was part of the group who attended meetings with Attorney General Eric Holder after it was revealed that both Associated Press and Fox News had phone lines tapped by federal law enforcement without notice, said the federal prosecutors “felt, particularly with the Rosen subpoena, they felt they had to allege that Rosen was involved in criminal behavior.” Rosen was alleged in court papers to have broken the law as an aider, abettor and/or co-conspirator, but he was not charged.

The Department of Justice’s draft revised guidelines, which still have to be finalized, are an improvement, said Bruce Brown of the Reporters Committee for Freedom of the Press.

Most of the panelists favor the reporters shield bill pending in the U.S. Senate.

Kaiser said, that before prosecutors can access information from the media without notifying them ahead of time, the shield bill would require a judge to find that there is clear and convincing evidence that disclosure would be a threat to an ongoing criminal investigation.

The shield law "does eliminate clear prosecutorial overreach," Kaiser said.

Eve Burton, senior vice president and general counsel for The Hearst Corporation, was the sole contrarian on the panel in opposing the shield bill.

The privilege would not apply at all in the national security context, Burton said.

Separately, Burton said there is another issue with media companies moving their computer systems into the cloud.

Microsoft and AOL are willing to contract with media companies that they will always provide notice that the government has sought to access information about the media companies--unless there is a governmental order precluding disclosure, Burton said. But Google and Amazon are not, she said.

Google and Amazon want to retain the discretion not to have to disclose that there has been governmental access to media companies’ information, Burton said.

The result is that Hearst and other companies are not joining the cloud or taking their business elsewhere, Burton said.

Google and Microsoft and other tech companies are better at protecting from hackers than media companies are, but they are not willing to go to jail to protect their sources, Wall said. So the middle ground might be to have some computing functions on the cloud, but to keep e-mail in-house, she said.

President Barack Obama’s “war on leaks and other efforts to control information are the most aggressive” since President Richard Nixon’s administration, according to the author of a report commissioned by the Committee to Protect Journalists. The report, “The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America,” was released Thursday.

The report was written by Leonard Downie Jr., who was an editor involved in The Washington Post’s investigation of Watergate, along with reporting by Sara Rafsky.

The committee is usually focused on the state of the media in other countries, and this report is its first comprehensive report on relations between the American executive branch and the media.

Six government employees and two contractors have been prosecuted under the 1917 Espionage Act for allegedly leaking classified information to the press during the Obama administration, while there were only three prosecutions under all other presidents, the report said.

Following Wikileaks' disclosure of classified information, the Obama White House established an Insider Threat Task Force to develop a government-wide program for “’insider threat detection and prevention to improve protection and reduce potential vulnerabilities of classified information from exploitation, compromise or other unauthorized disclosure,’” Downey wrote.

As a result, every federal department and agency was told to set up Insider Threat Programs to prevent government workers from disclosing information without authorization.

Reporters also shared that their Freedom of Information Act requests face “denials, delays, unresponsiveness or demands for exorbitant fees, with cooperation or obstruction varying widely from agency to agency,” Downey said.

During a press conference on the report Thursday morning, Downey said that government employees are increasingly afraid to talk to the press and not just about classified information. Downey also said that Obama’s promise to be the most transparent presidency in American history has meant avoiding the institutional press in favor of a “sophisticated governmental public relations strategy” focused on social-media messaging and creating its own web-site content.

For example, photographers are allowed much less access to the president than in the past, and most photographs of Obama are from the White House institutional photographer, Downey said.

“None of these measures is anything like the government controls, censorship, repression, physical danger, and even death that journalists and their sources face daily in many countries throughout the world—from Asia, the Middle East and Africa to Russia, parts of Europe and Latin American, and including nations that have offered asylum from U.S. prosecution to [leaker Edward] Snowden,” Downie wrote in he report. “But the United States, with its unique constitutional guarantees of free speech and a free press—essential to its tradition of government accountability—is not any other country.”

Jack Goldsmith, a former lawyer for President Bush’s administration told Downey that leakers have to be prepared to face legal consequences, but that leaks ‘“serve a really important role in helping to correct government malfeasance, to encourage government to be careful about what it does in secret and to preserve democratic processes.’”