
Appeals court rules journalists can’t keep their sources secret - JumpCrisscross
http://rt.com/usa/nyt-risen-leak-espionage-336/
======
Steko
Freedom of the press protects the right of the press to publish things.

It does not[1] protect any agreements made to secure that publishing. If you
guarantee your source anonymity or a million dollars and you later can't
deliver because someone emptied the bank account or eavesdropped or a court
compelled you to testify, that has nothing to do with your right to publish.
It may affect your ability to publish but so do locked doors and I don't see
anyone saying freedom of the press should trump trespassing rules.

If bystander Amy is witness to Bob's crime and subpoenaed and under oath she
can either tell the court the truth of what happened, perjure herself or not
answer and be held in contempt. Freedom of the press, attorney-client and
doctor-patient privileges should provide zero protection here.

[1] Generally in the US. Many states have shield laws and protected in various
other countries.

[http://en.wikipedia.org/wiki/Protection_of_sources](http://en.wikipedia.org/wiki/Protection_of_sources)

[http://en.wikipedia.org/wiki/Shield_laws_in_the_United_State...](http://en.wikipedia.org/wiki/Shield_laws_in_the_United_States)

~~~
jimktrains2
It has been held by many courts that the ability to keep sources secret aids
in the flow of knowledge to the public and allows the press to function.

Floyd Abrams has an entire chapter on it in "Friend of the Court."

~~~
Steko
It certainly aids in the flow of knowledge to the public but so would a lot of
clearly not allowable things like hacking celebrity phones.

~~~
jimktrains2
Yes, I'm not defending illegal acts, but it seems that many cases, _e.g._:
Pentagon Papers and Watergate, could have only been done with protected
confidential-sources.

~~~
Steko
I'm not sure how persuasive that is because those things happened without the
claimed protection. The reporter can certainly gain trust by saying he's
willing to go to jail to protect the source.

~~~
jimktrains2
It's been pretty persuasive to this point, hence the shield laws that almost
all states have put in place.

------
swombat
_" Journalists should not be at legal risk for doing their jobs. Our focus
must be on those who break the law," Obama said during a May 23 address after
those scandals first surfaced._

I find it hard to reconcile that with the Obama administration's attitude to
Snowden, Wikileaks, Assange, etc.

~~~
bobwaycott
Now, with Snowden, Obama has charged 8 people under the Espionage Act, whereas
it was used only 3 times before his administration.

There is something systemically wrong happening behind closed, classified
doors.

~~~
jcromartie
> happening behind closed, classified doors

My friend who works in the intelligence community assures me that if we only
knew the kinds of bad guys they are secretly protecting us from (e.g. another
Boston Marathon bombing every week) we'd be thankful. I don't believe him.

The gov't loves to trot out every single foiled terrorist as a victory of
their systems. The gov't isn't quietly foiling terrorist attacks left while
it's just too humble to say so.

Or maybe there's some reason to keep a foiled attack a secret?

~~~
lukifer
> Or maybe there's some reason to keep a foiled attack a secret?

There absolutely would be: SIGINT 101 is that you don't reveal your
information gathering abilities, lest your opponnent move to new
communications channels. In WW2, the Allies often learned of attacks due to
code-breaking, and chose not to reveal them, so as to preserve the long-term
strategic value of future intel. (The wartime morality of letting 1,000 die
today to ostensibly save 10,000 tomorrow is left as an exercise for the
reader.)

I do give our agencies the benefit of the doubt, that there are probably are
real threats, and they are probably acting in good faith. But I still find the
current scope of spying and databasing to be dangerous, un-American, and
inhuman.

Terrorism, as horrible as it is, will always be an improbable statistical
outlier. But when state power slides into tyranny, it is pervasive, ongoing,
and difficult to undo. Preventing the latter should be our highest priority,
or we have failed to learn from history. Something tells me it's a lesson
we'll be learning the hard way.

------
girvo
Jesus christ. I argued for a Bill of Rights while participating in Youth
Parliament here in Australia, and used USAs typically strong defence of
freedoms as my evidence.

And now all of that has been systematically ignored and weakened over the past
few years (of course, it could have always been like this and I just hadn't
noticed). It's a dammed shame, and I am no longer excited about possibly
moving to Silicon Valley: I don't think I'll move at all anymore.

~~~
ars
There never was this sort of freedom for journalists. The fact that you think
so is just a testament to how easily journalists can spread their messages.

They always wanted there to be such a law, but there isn't and never was.

I am not saying it might not be a good thing for this to be the law, I'm just
saying it never existed.

~~~
sigzero
You are right, it never did. Yet almost every movie involving scenarios of
lawyers and sources has it. As does any TV show and book. It is deeply
ingrained in our thought process yet it is wrong (from the point of view their
is no such protection). It is kind of amazing when you think about it.

~~~
alanctgardner2
You're confusing two different things: lawyers enjoy client-attorney privilege
at every level in the US. For this to apply you must be a practicing attorney.
Journalists don't enjoy similar protections because they aren't a self-
regulating profession (there is no law appointing an entity to regulate
journalists, as there is one to create the bar organizations).

------
seliopou
Articles about court cases should properly cite the case and link to the
decision. For court case that went on for years and involved reams of
documents entered into evidence, something's probably gonna get lost in the
reduction to a couple paragraph summary. Isn't it weird that nobody reads
court documents before railing against the outcome? It's not that hard to read
the opinion and dissent, identify the judges' perspectives, and follow their
arguments. Even if you have no background in constitutional law or relevant
statutes, you can pick it up as you go along.

Anyways, since I can't find the decision I can't really figure out whether I
should complain and do nothing about the court or the law.

~~~
socillion
Here's the decision: [http://legaltimes.typepad.com/files/sterling-
ruling.pdf](http://legaltimes.typepad.com/files/sterling-ruling.pdf)

It's 118 pages, have fun.

I found it at [http://www.emptywheel.net/2013/07/19/fourth-circuit-guts-
nat...](http://www.emptywheel.net/2013/07/19/fourth-circuit-guts-national-
security-journalis/)

~~~
seliopou
Thanks.

The nice thing about court cases is that they're divided nicely into parts
that consider different questions before the court. You also get an entire
section called "Background" which I hear is useful.

But even before you get to the background, just by reading the first page, you
get a more nuanced view of what's going on. The decision's split up into seven
parts, of which only part I and VI saw unanimous agreement. Judge Gregory
dissented for parts II-V, and Judge Diaz wrote his own opinion for part VII,
concurring in part and dissenting in part. Also, you can see that in some
questions, the lower court's affirmed, in others it was rejected, and some
questions were sent back to it.

What other nuance can we pull out of this from reading just a few more
sentences?

------
grandalf
This kind of thing proves how much of a genius Osama Bin Laden was when he
planned the 9/11 attacks. He knew we would throw away our values and move
toward totalitarianism.

With the massive surveillance apparatus in place, US journalists scared to
cover many of these stories that RT covers, etc., the US is one attack away
from instituting a much more overt police state.

Peter King is one attack away from the White House.

In the midst of all this it's amazing how little dissent there is. I used to
think it was mysterious how things like Nazi Germany could have happened, but
now I think it's clear that it just takes a series of small steps in the wrong
direction, and none of the actors have to be overtly evil.

------
bobwaycott
This has got to stop.

This administration is walking all over civil liberties and constitutionally
protected freedoms. It is turning way too many citizens into enemies of the
state. And where not charging them as such, it settles for treating them as
such.

The branches are not keeping each other in check, either. Instead, they
continue to allow themselves to be complicit in violating the consent of the
governed, fighting over useless, divisive issues (let's break the country's
arm to control everyone's sexuality), and tossing away the constitutional
protections we've grown far too accustomed to taking for granted.

This is unacceptable.

~~~
rayiner
Remind me where in the Constitution it says that "Congress shall pass no law
abridging the freedom of journalists to keep their sources secret?"

Indeed, keeping sources secret cuts against the common law evidentiary
practice that was typical at the time of the founding. Common law courts have
sweeping powers to force people to hand over evidence in their possession
using subpoenas, with just a few limitations (5th amendment self-
incrimination, etc).

The Wikipedia page for an older journalist privilege case gives a good
description:
[http://en.wikipedia.org/wiki/Branzburg_v._Hayes](http://en.wikipedia.org/wiki/Branzburg_v._Hayes)

Floyd Abrams, noted 1st amendment lawyer, had this to say about the case:
"[Persuading the Court to grant First Amendment protection to journalists
regarding their sources] was obviously going to be a hard sell.
Notwithstanding the strong policy arguments in favor of establishing this
privilege and the serious harm that would be caused by its absence, no such
protection had ever been held to exist. Not only was the concept that the
judicial system was entitled to 'every man's evidence' itself deeply rooted in
the Constitution, but merely determining the scope of the privilege (when
would it apply?) and identifying who would receive it (only regularly employed
journalists? freelancers? anyone?) were difficult matters at best."

~~~
coldtea
> _Remind me where in the Constitution it says that "Congress shall pass no
> law abridging the freedom of journalists to keep their sources secret?"_

Remind me where in his comment he said it was in the Constitution?

What he said was: "This administration is walking all over civil liberties and
constitutionally protected freedoms".

"Civil liberties" and "constitutionally protected freedoms" being two
different (if somewhat joined) sets.

Second, it can very convincingly be argued that the taking away of such a
protection is bad, regarless of if it was in the Constitution or not.
(Depending on your stance on the freedom of the press and it's ability to keep
those in power in control, of course).

The heart of the issue is not if it was in the Constitution. That's a pedantic
issue, irrelevant in a democracy. The items in the ammemndements weren't in
the Constitution either. And if the right to own slaves had been in the
Constitution, few would argue for it remaining there, some centuries years
later.

The core of the issue is: do people WANT such a protection or not? And do
people feel that they explicitly taking of the table is bad or not?

~~~
tptacek
The root comment said "This administration is walking all over civil liberties
and constitutionally protected freedoms", and, later, that USG was "tossing
away the constitutional protections we've grown far too accustomed to taking
for granted". Rayiner's interpretation wasn't just fair but also the most
obvious one.

~~~
bobwaycott
Well, considering that my comment said nothing specifically about journalists
or their being a constitutional right to protect one's sources, we must have
different understandings of what a fair interpretation is, and what obvious
means.

What strikes me as obvious, from the content of my comment and a political
theoretic standpoint is what I stated—this administration is running afoul of
what we've taken for granted, and the branches are not properly balancing each
other's powers to protect the Constitution and the governed.

~~~
tptacek
It's disingenuous to pretend that you weren't talking about journalists when
your comment roots a thread on a story about journalists. What else would you
have been talking about? I think, rather, that you see 'coldtea as supporting
you, and are now in turn sticking up for him; you see yourselves now as a
faction, which is unfortunate.

~~~
bobwaycott
Are you kidding me? You're now, from the comfort of your detached position,
attributing intent and making a ridiculous assertion of seeing myself and
other complete strangers on the Internet as a faction? This is what's
unfortunate—that you think you can even figure out the complexities of my
thoughts based on your subjective experience as an outsider.

Care to explain just how exactly you can possibly determine from your vantage
point the evidence that supports the claim that I am pretending? That's pretty
much accusing me of behaving falsely, and you've got all that from a couple
sentences? Who is coldtea to me but an Internet stranger? Why would I care to
stick up for him? Moreover, why would I behave falsely and betray my original
intent to support a stranger? I hadn't even read his comments before I replied
to you (see how I replied to yours before rayiner's? I'm replying from email
links in which all I have is the direct reply text, not surrounding context).

> _What else would you have been talking about?_

Would you like me to get a mathematical estimate of how many possible
combinations exist for what else I might have been talking about? Please,
don't make such a fool's mistake of thinking you can reliably determine what
is happening inside my head and my motivations from a couple of sentences.

Your comments show a far greater potential for seeing yourself in some kind of
a faction with rayiner. I usually appreciate many of your comments, but
goddamn, you really like to defend the shit out of rayiner way overstepping
interpretation and not bothering to verify he's on the correct trajectory.

~~~
tptacek
Are you sure this sentiment was worth almost 300 words?

Let's just agree to disagree.

~~~
bobwaycott
Was your sentiment of accusing me of intellectual dishonesty and bad faith
worth the words and your reputation to levy the charge?

Two rational people cannot agree to disagree. One of them is doing something
wrong.

~~~
dctoedt
In this context, Thomas's "let's agree to disagree" is clearly a euphemism for
_each of us is wasting his time trying to change the other 's mind, so let's
not bother any more._

> _Two rational people cannot agree to disagree. One of them is doing
> something wrong._

Your first quoted sentence goes too far [0]. Rational people can and do agree
to disagree over, for example, whether the universe has 10 dimensions, or 11,
or 26 [1].

Your second sentence doesn't go far enough: _Both_ (of the putatively rational
people) could be doing something wrong.

[0] All categorical statements are bad --- including this one.

[1]
[http://en.wikipedia.org/wiki/Dimension_(mathematics_and_phys...](http://en.wikipedia.org/wiki/Dimension_\(mathematics_and_physics\)#Additional_dimensions)

------
ivv
Interesting how Russia Today is doing to the US what Radio Liberty and Voice
of America did to the USSR thirty years ago.

------
transfire
Does that make it a crime for a journalist to take the 5th?

~~~
girvo
In Australia at least, yes. Many have been found in contempt of court and
jailed because of it. Does the right to not self incriminating extend to
incriminating your source?

~~~
lukifer
You cannot be compelled to testify against yourself (or your spouse, law
client, etc), but you _can_ be compelled to testify against someone else,
which is how subpoenas work.

~~~
troels
Even if they don't know who this third party is? What if the source is your
spouse?

~~~
sigzero
In the US, spouses cannot be compelled to testify against each other.

~~~
troels
Then how can you be compelled to reveal your anonymous source? After all, it
could be your spouse.

------
znowi
_The reporter must appear and give testimony just as every other citizen must.
We are not at liberty to conclude otherwise._

I hope they hold the same opinion of NSA agents.

------
noonespecial
"Journalist" has always been a bit of an artificial distinction. Members of
the press don't get special rights for being so. The most they may have gotten
in the past was special access.

This clearly shows two things. We've _all_ been journalists all along and we
never really quite had the rights we thought we had.

~~~
quahada
Agreed. Whether journalists are legally allowed to protect their sources or
not, this right (or lack thereof) needs to apply to all citizens. Otherwise,
we would have created a new class of people who have different constitutional
rights than others.

How can the legal system selectively allow some people the right to protect
sources and not others? Who gets to decide who's a journalist? Do we draw the
line at establishment reporters? Or do we allow full-time bloggers? What about
part-time bloggers? What about if someone's never blogged before, but suddenly
has something to say?

------
argumentum
"Journalists" are not given _special_ rights by the 1st amendment, which
states that _all of us_ are entitled to freedom _of the press_ (not freedom
_for the press_ ).

In the internet age, we are all _journalists_ and therefore we should _all_
have the right not to reveal our sources for what we publish.

~~~
rustynails77
Who will now want to whistleblow on the government for illegal activities,
when the NSA will strongarm any media that you speak to?

This will actively encourage corruption.

~~~
belorn
Foreign countries? Its common practice in China, Russia and other similar
countries that anti-regime reporting is done outside the border. PRQ (the ISP
of the pirate bay back in 2006) was hosting several similar news papers, as
Sweden was seen as a haven for activities demanding common carrier principle.
Now days, I guess Iceland has taken the primary role for such.

------
gngeal
Well, journalists will have to come up with a way of having people send them
scoop without revealing who the scoop senders are.

~~~
steevdave
Wasn't something like that published recently?

~~~
Kliment
Are you referring to strongbox? Strongbox only works if the institution
operating it cannot be compelled to sabotage it.

------
eigenvector
What is unprecedented and disturbing is the classification of releasing
information to the (American) public, whether that be through the New York
Times or Pastebin, as aiding the enemy.

Unauthorized leaks have never been legal but in the past even the government
has understood that these people are a far cry from being enemy agents.

------
quasque
This is not quite true - they still can keep their sources secret, but under
the renewed threat of being charged with contempt of court.

Whether or not this causes a sufficiently chilling effect on whistleblowing
within the US, or reporting on it, remains to be seen.

------
Andrew_Quentin
Well he can go to the witness stand but stay silent, i.e No Comment. He can be
asked questions, but surely he can't be compelled to answer them.

~~~
mseebach
Then he's getting locked up for contempt of court because he's refusing to
comply with a lawful order from the judge.

~~~
GrinningFool
Indeed. And there is a long and respectable history of journalists doing just
that:

[http://www.rcfp.org/jailed-journalists](http://www.rcfp.org/jailed-
journalists)

The list is neither exhaustive nor particularly recent, but certainly it shows
this is nothing new - there has _never_ been protection for journalists who
will not comply with a court order to reveal their sources.

The good ones will refuse to reveal them anyway, and face any consequences.

~~~
3825
I fully agree. If James Risen testifies, his journalistic career is over. If I
was a somebody like James Risen is[1], I would not even think twice before
holding any court of law in contempt[2].

[1]: He is a Pulitzer-winning journalist.
[https://en.wikipedia.org/wiki/James_Risen](https://en.wikipedia.org/wiki/James_Risen)

[2]: If you are reading this statement, you, your government, and anyone else
hereby lose your right to sue me for any reason whatsoever to eternity.

------
EGreg
So the fourth estate now can't keep their sources secret ...

Funny because the executive branch seems to like their secrets so much, they
will work to set up secret courts with secret laws just so the secrets don't
get revealed to the public. And they will go to great lengths to pursue those
that reveal those secrets. "Trust us, we followed due process and our actions
have been authorized by a few secret courts."

But journalists? Hey they are just "citizens." After all who cares that this
will severely hamper anonymous sources to the media?

------
venomsnake
The moment a journalist is compelled to reveal a source with the whole
profession is over except tabloids, Fox News alikes and other works of
fiction?

It is not about just journalist we need broad third party protections for
information possession.

After all the whole idea is the government to not have the things too easy.

