Donald Trump has declared war on anonymous sources and wants to ban their use by journalists. In a speech at the Conservative Political Action Conference (CPAC) on February 24, he said: “You will see stories dry up like you have never seen before.”
He’s right. If such a restriction is imposed then stories would dry up. He is very wrong to demand it though. Such a restriction on journalism would have devastating effects for democracy and the flow of information in the public interest, as courts have repeatedly recognised.
But in his first few weeks as president, Trump has shown himself to be no friend to press freedom. Hours after his CPAC speech, the White House barred several news organisations, including the Guardian, the New York Times, Politico, CNN, BuzzFeed, the BBC, the Daily Mail and others from an off-camera press briefing, or “gaggle” conducted by press secretary Sean Spicer. Additionally, he announced that he will not attend the White House correspondents’ dinner in April. Building relationships with the press is not a priority for this new administration.
Banning the use of confidential sources denies a core principle reflected in media ethics codes from around the world and flies in the face of the First Amendment to the United States constitution and rights to free speech. Protecting journalists’ confidential sources is deemed essential to freedom of expression, public interest journalism and holding power to account. It is held as sacred, to be interpreted rigidly – even in the face of criminal prosecution.
The principle is deep-rooted and recognised in the jurisprudence of the European Court of Human Rights (which has found against the UK on this issue, on more than one occasion), formal commitments by the Committee of Ministers of the Council of Europe, the United Nations Human Rights Council and the European parliament.
But successfully protecting a confidential source has always required a careful balance. Protections exist in law but they must be skilfully navigated and practical steps taken to maintain confidential communication between journalist and source. This careful balance was never easy to achieve, but it is becoming increasingly difficult, as we show in our recent report “Protecting Whistleblowers and Sources in a Digital Age” – the result of a research initiative supported by Guardian News and Media, publisher of the Guardian and the Observer newspapers.
Our research presents the views and experiences of 25 investigative journalists, specialist lawyers, academics and representatives from NGOs, shared at a meeting hosted by the Institute of Advanced Legal Studies in September 2016.
We identify that a powerful combination of legal and technological threats now jeopardise source confidentiality. A journalist may assure a source of anonymity but that promise is not an easy one to keep unless the source has taken precautions when making contact from the very beginning of their communication.
Even for a source such as former NSA contractor Edward Snowden, well versed in encryption and security techniques, maintaining confidential channels of communication was tricky when he decided to leak documents revealing the nature and scale of the NSA’s international surveillance programmes in 2013. Most sources may not take important precautions, nor wish to disclose their identity, as Snowden eventually did. They won’t necessarily have the technical ability of Snowden, the mind-set of Deep Throat, nor necessarily even think of themselves as a source or a whistleblower.
Blowing the whistle
In tandem, legal threats abound. The government has claimed, during the passage of the Investigatory Powers Bill in 2015-16 and in response to our report, that it has strengthened protections for whistleblowers in legislation, but we remain unconvinced.
The Investigatory Powers Act was an opportunity to create a robust and independent process for authorising the state’s interception of journalistic material. In the event, despite the introduction of a judicial approval stage, journalists and their sources are left vulnerable with no requirement for notification to the affected party – and protections that fall short of their equivalent in the Police and Criminal Evidence Act (PACE) 1984.
More recently, the Digital Economy Bill 2016-17 posed a new threat. In its original form, Part V introduces new criminal offences for disclosure of public authority and government data with no specified protection for public interest journalism.
Thanks to the intervention of the National Union of Journalists, the Media Lawyers’ Association and the News Media Association, the government has introduced an amendment which offers a defence for public interest journalism.
Nonetheless, there is still a question mark about the effectiveness of this defence and the extent to which it will protect journalists and their confidential sources. How will it be interpreted by the courts?
It is a thorny legal problem about what should be considered as “journalism”, and so it is difficult to predict who – or what activity – will benefit from this defence. Additionally, even if journalists are better protected in law, we must not neglect the question of whether sources and whistleblowers are adequately protected.
In the public interest
The latest issue to garner attention is the Law Commission’s new consultation on the protection of official data. Preliminary proposals on reform to the law on official secrets and espionage have been severely criticised by a number of media organisations and civil society organisations.
The Law Commission has indicated that these are merely proposals – and they, to a large extent, are an attempt to codify and update existing laws, but these points do not alleviate our concern about their effect on whistleblowing and source protection.
A consolidating act that replicates the deficiencies of already existing law would be no improvement on the existing law – and the absence of a public interest defence in actions that relate to whistleblowing of officially secret material is a significant omission.
And as Trump’s comments at CPAC indicate, a larger sociopolitical threat looms. The new president takes an unprecedented approach to his dealings with the media and his use of social media. Events – such as the disclosures leading to the resignation of US national security adviser Michael Flynn – highlight the value and importance to democratic debate of whistleblowing in the public interest.
This demonstrates quite how important it is that journalists who receive such material are able to protect their sources. If this were not the case, the public would not see material that helps provide a clearer and accurate picture of important contemporary events – particularly vital when the US administration continues to express such overt hostility to the mass media.