Journalists can’t wait for law to catch up with technology

Tuesday, October 12, 1999

If lawyers, judges and legislators have learned anything during the last 25 years, it’s that the law simply can’t keep up with technology.

For more than a generation, we’ve seen the law lag behind technological advances in reproductive rights, health care and telecommunications. Currently, the law is racing to catch up with the rapidly exploding world of the Internet, e-commerce and e-mail. For journalists, the gap between reality and legality is a large one, one that presents unanswered questions almost daily.

Perhaps the most critical issue is the reliability of information obtained from the Internet. In its unregulated state, the Internet is home to a universe of anonymous sources. “Official” Web sites might not be official at all. The information contained in Web postings can be intentionally or inadvertently inaccurate.

Hackers eventually will realize that they can do more damage (albeit with less attention) by infecting sites with incorrect information than they can by posting glaring errors that are easily identified and corrected. When that occurs, can a reporter ever reasonably rely on electronic information? Will courts allow publishers to avoid liability by attributing potentially unreliable information to its electronic source (“According to …”)? Or will courts insist that journalists verify electronic information before re-disseminating it?

Journalists also will face a number of other liability issues associated with electronic reporting and newsgathering:

  • Libel. Courts still are struggling to apply the libel rules for press and broadcast publishers to online media. Who is liable when someone is libeled on the Internet? The author? The Web site host? The service provider? When is it negligent for reporters to rely on electronic information? When is it reckless for them to do so?

  • Privacy. Over the years, courts have held media companies liable for publishing private, embarrassing facts about people, especially when those facts were not deemed newsworthy. As more and more information becomes available over the Internet, more and more of it will be private and potentially embarrassing. Is this information truly “private” if it can be easily obtained from a Web site? Does it matter if the Web site is obscure or difficult to find? In today’s information age, can people ever have a reasonable expectation of privacy?

  • E-mail. Many of the hottest freedom-of-information issues today concern e-mails to, from and between government officials. Are e-mails from constituents public records subject to disclosure under open-records acts? Must e-mails between government officials be printed and saved as public records? Do e-mails between government officials violate open-meetings requirements?

  • Confidential sources. One of the most frightening technological advances in recent years has been the introduction of Investigator 2.0, a software program that allows computer owners to track every keystroke and mouse movement made at a computer. Employers can use this software to monitor every program opened, every document accessed and every e-mail sent and received by employees. Government agencies already have purchased and installed the software. In doing so, these agencies freely admit that they intend to use the software to identify and retrieve e-mails between employees and journalists. In light of this type of monitoring, can a reporter ever really promise confidentiality to a source who is using a government computer to access or transmit information?

    These questions — and others like them — will plague journalists until courts across the country reach a consensus as to the rules that should govern the use of electronic information in newsgathering. When those rules finally emerge, however, the question will be whether changes in technology and newsgathering already have rendered them obsolete.

    Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.