Privacy Dilemma, Reporters’ Shield Dilemma – 2013 MLRC London

When the Obama administration goes after Snowden, Manning, and the like, its avowed purpose is to protect national security but it is really doing so by protecting “information security”, e.g., blocking or containing the flow of information.  Ironically, when the Obama administration goes after journalists suspected of using the leakers as their sources, wiretapping them, the administration itself is now breaching the information security, now of journalists.  Of course, the other side of the same coin is that journalists very much versed (and vested, as well) in the ‘public interest’ exemption from the wiretapping regulations must now face the Administration’s ‘public interest’ justifications for tapping their (journalists’) phones.  It is not really a dilemma because these exemptions and justifications will be raised in different fora: the first goes to the merit of a criminal trial of that reporter while the second concerns the admissibility of the evidence against him/her.

However, I found a real stalemate in the first, morning session of Media Law Resources Conference 2013, London.  In the first session, the gathered almost unanimously opposed the UK Leveson recommendations (set up to scrutinize the UK media practices from ethical perspectives in the wake of the phone-hacking scandal) for a new press regulation, especially pointing out that the Leveson inquiry ignored the elephant in the room, the Internet, which is obliterating the entry threshold for setting up a media business, thereby affecting (often negatively) the existing media.  But in the second session, the crowd cheered for the American legislative attempts to grant special privileges to professional journalists:  The U.S. Senate began the process of passing a federal reporters’ shield law. California is about to pass a law that requires the government to give 5 days advance notice when it obtains from third party sources (probably, telcos and portals) a reporter’s private information, justified as an attempt to stop the government from bypassing that state’s reporters’ shield law when it can identify the reporter’s source from his/her communication records.  http://argonautnews.com/lieu-bill-would-give-reporters-protection-from-secret-surveillance/

Yes, reporters and reporters only.  I think that these American attempts are also ignoring the elephant in the room, the Internet.  In this day and age, everybody is a new gatherer and a news disseminator.  How the new laws will make that distinction will have an intractable constitutional problem in equal protection areas.  Senator Feinstein’s concern notwithstanding, you must have some justification for leaving out even “a 17 year-old with a notebook computer”.  Also, once reporters are given these privileges, there will be a quid pro quo: regulation of reporters.  The public will want to see some standards (ethical what not) by which these reporters are defined, and want some policing to be done on whether reporters are meeting those standards, exactly the self-regulatory body that Leveson recommended.  There is really no way around it.  Once you define something, that definition needs be policed if falling into that definition decides whether benefits are given or not.  Given the draconian benefit under reporters’ shield law, I can see the public wanting to know in advance who the reporters protected under the shield law are and demanding something like a reporter’s registration law.  They will need it if they want to give information to reporters and remain anonymous forever.

I am not really against existing reporters’ shield laws, which have protected reporters form the wrath of judges, who by the way also want to breach into the reporters’ privacy on account of the public interest of a fair trial.  I am reminding the journalists of the unintended but probable consequences of the expansion of those privileges.

Also, there is a better battleground where there is no dilemma, which I talked about earlier.  Journalists must just bite the bullet.  Whether you are in a state with a reporter’s shield law or not, journalists working with the leakers must try to prove to the court that the leaked information demonstrates sufficient overwhelming public interest that justifies the leakage and its subsequent news report so that identifying the source is unwarranted, (and maybe also that issuing a wiretapping order on the journalists aimed at identifying the source was also unwarranted).  I know that many judges will still want the full truth anyway, especially if the trial is not on defamation but on national security violations but a reporters’ shield also kicks in only at the pleasure of the judiciary in a sense that another judge or even the same judge can sign court approvals for all out search and surveillance, which will lead to disclosure of the source anyway.  In the days of the Internet, journalists and their lawyers should train themselves to an environment where they do not need to fall back on any special privilege.

What is more ideal for me:  Through reporters’ shield laws, they are trying to protect what is essentially their informational privacy.  Well, non-journalists are entitled to informational privacy as well. The 13 Principles of the Application of International Human Rights to Communication Surveillance, https://en.necessaryandproportionate.org/text the first international human rights document, already require notice to the person being surveillanced if not in advance at least contemporaneously with the end of the surveillance.  This is not a privilege that a select few can claim but a universal requirement for all people being surveillanced.  Snowden is going through what he going through in order to protect people’s privacy.  If journalists can somehow create the worldwide attention on these principles, they are doing much more than just protecting Snowden.