Shield law should not be blocked over WikiLeaks

Thursday, September 9, 2010

Copyright 2010 by the Reporters Committee for Freedom of the Press. Reprinted by permission. This article appeared in the summer 2010 edition of News Media & the Law.

It was only a matter of time before someone used the Internet to anonymously spread sensitive classified information collected by the United States and other governments.

And it’s not surprising that it was WikiLeaks, a website founded in 2006 by Australian Julian Assange as a repository for secret information collected by self-styled “whistleblowers” from around the world, that in July dumped more than 90,000 Afghanistan war reports onto the Internet.

It also shouldn’t be a surprise that the folks at WikiLeaks are giving Washingtonians significant heartburn. Among the most concerned are those who have spent time over the last six years advocating for a federal shield law.

As the end of the 111th Congress approaches, the Reporters Committee and other news organizations are frantically working to persuade the U.S. Senate to finally vote on a federal shield law that gives limited protection for bona fide journalists to protect their confidential sources. Although a similar measure passed by voice vote nearly 18 months ago, the Senate has been hung up over defining who would be covered by the law and in crafting a way that would deny protection to a journalist and the source whenever a federal prosecutor utters the words “national security.” Democratic Sens. Charles Schumer and Dianne Feinstein are now drafting an amendment to exclude such websites from the pending legislation. However, it is not clear that a U.S. federal subpoena could even be served on the website, which bases its operations in Iceland, Sweden and other locations.

In my mind, such changes are not necessary.

The six full-time volunteers and about 1,000 volunteer “encryption experts” who operate WikiLeaks will not be confused with journalists. Assange conceded as much when he gave thousands of the classified Afghan documents weeks ahead of time to three international newspapers, including The New York Times, to be published at the same time the data was posted.

This had two interesting effects: First, actual journalists had the opportunity to do some actual journalism with the documents. That is, they reviewed and verified the documents, sought out alternative views and asked the government to not only comment on the documents but also warn them if some information should not be posted in an effort to protect sources and methods in Afghanistan.

Second, the fact that well-respected news organizations used the documents gave instant publicity to WikiLeaks. How many people outside the intelligence world would have paid attention to the posting of thousands of classified documents had the mainstream media not become involved?

It’s futile to ask whether WikiLeaks should be “allowed” to operate. At this point, there’s no way to stop Assange or anyone else with the same business model.

One of the great ironies in the shield law debate is this: Would we even be talking about the need for a shield law if news organizations used the anonymous dumping model, where sources are not identifiable and those who post the information are not subject to a subpoena because we don’t know who they are?

We’ve always been excited about what technology can do for a new generation of journalists. But it’s also important to make sure that journalists are given the right to protect confidential sources. It leads to better journalism.

It’s dangerous to come up with bright-line rules for defining journalism. But there are a few useful tools to use when you’re trying to decide whether someone performed an act of journalism.

I pulled out the Society of Professional Journalists Code of Ethics to evaluate what WikiLeaks did and concluded that the WikiLeaks data dump was not journalism. The code is useful because it poses a series of questions.

First, did the WikiLeaks documents reveal the truth? It seems so.

Did the WikiLeaks volunteers act independently, without being beholden to any sources or outside interests? Probably.

Were they accountable for their work?  No. Other than Assange, we don’t know who they are. How could we possibly hold them accountable?

Did the WikiLeaks posters “minimize harm”? It appears The New York Times did. But further evaluation of some documents from Afghanistan not used by the news organizations have revealed that scores of intelligence sources — i.e., people who live in the communities affected by the war — were identified and are likely in danger of death or imprisonment.

I don’t think WikiLeaks engaged in journalism. Congress should come to the same conclusion and adopt a federal shield law when it comes back from its summer break.