Appeals court rules journalists can’t keep their sources secret | Hacker News Reader

Appeals court rules journalists can’t keep their sources secret

rt.com

108 pointsJumpCrisscross99 comments

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/Shield_laws_in_the_United_State...

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."

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.

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.

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.

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

"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.

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.

> 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?

You would be thankful but not in the way he thinks. There should still be an open conversation about tactics.

Of course he would say that. It makes his job important and justifies increased budgets. I don't believe such BS either.

Makes you wonder who the real terrorists are.

> 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.

Here are the people besides Snowden who have been charged under the espionage act by Obama:

https://news.ycombinator.com/item?id=5701813

In subsequent discussions it's become evident that even the Kiriakou case isn't as cut-and-dry as it seems.

Thanks for the list. Not implying anything is cut and dry. Pointing out that in nearly a century, 8 of 11 cases are sourced in this decade. That's the kind of thing that gets historians and political/critical theorists paying attention.

Something unusual is happening during the Obama administration vis a vis leaking. But we don't know what it is. Four broad, obvious possibilities:

(1) More people are taking greater liberties with government secrets in 2013 than they did in, say, 2004.

(2) The government is creating more "secrets", justifiably or not, and thus putting more people into contact with secrecy and creating a greater risk.

(3) The Obama administration is working more diligently to monitor the handling of secret information, so that leaks that wouldn't even have been detected in 2004 now are.

(4) The Obama administration has a more punitive attitude towards leakers, so that leaks that would have resulted in a slap on the wrist in 2004 now produce criminal prosecution.

All four can be true.

Also, I think it's important to bear in mind that our sympathies with specific cases (best example: Bradley Manning) aren't dispositive. It is simultaneously possible for someone to have done something for the greater good --- and even for that thing to have achieved the greater good --- and still have that act merit criminal prosecution. This gets to the issue of "rule of law, not of men", and requires you to consider that your definition of "the greater good" can differ sharply with definitions of other people; consider, for instance, my zealously pro-life Catholic aunts, or the militia movement.

Relatedly: it's important to understand that supporting a prosecution doesn't demand support for conviction; it can simply mean that one believes something more formal and "accountable" than the discretion of officials combined with public sentiment should govern the acceptability of a breach of trust with the USG.

Looking at the list of cases I presented:

* Three of the cases (Liebowitz, Sterling, Kim) don't involve terrorist threats on the US, but rather foreign policy and counterproliferation. Leaks of actual active foreign intelligence might demand a stricter review standard.

* Two of the cases (Snowden and Manning) were so monumentally huge that there may have been no possible outcome other than a court case of some sort.

That leaves Drake and Kiriakou. I read the FAS archive of filings on Kiriakou and came away thinking that, regardless of my extremely negative feelings about CIA-run interrogations in the Middle East, his prosecution wasn't egregious: https://news.ycombinator.com/item?id=5796162

Drake, I don't know.

My personal guess as to ranked order of the 4 factors above: (3), (1), (4), (2).

Excellent points, thanks.

I hold fidelity to the rule of law of paramount importance. Of equal importance, however, is the principles behind preserving a democratic republic that realizes the greatest possible equality, justice, and freedom for a maximum plurality of citizens. I judge laws and their executions by the latter standard, and I interrogate achieving the latter standard by upholding the former. They should operate in the public sphere in much the same way as we've established branches of government to serve as checks and balances against each other.

As a defender of civil disobedience as a means to preserve principles while maintaining fidelity to law, I definitely hold that, while one may legitimately be justified as a civil disobedience if one meets the criteria, this does not absolve one of the status of lawbreaker and merit a need for legal review and/or criminal prosecution of one's disobedient acts. So, I think we agree on that point--including that supporting fidelity to law vis à vis prosecution does not equal supporting conviction and imprisonment. I also find it is not inconceivable that one could oppose prosecution in certain cases where the principles are of such grave concern or endangered in such a fashion that prosecution, and especially conviction, can further erode protection of the principles that ought to be preserved and protected by a just society. Also, if one sees a juridical trend in which the courts' decisions appear to be failing their purpose in the contracted balance of powers, I think we hit a point where, from a critical theoretic point of view, we've got serious trouble. If an executive is trampling the Constitution (or viewed to be doing so by a significant portion of the population), and the legislature is not reigning abuse of power in via specific legislation, and the courts are either passing on or showing deference to the executive (for debatable reasons), where else do the citizens turn in their desire to maintain fidelity to law and protect established principles?

(By the way, I'm not trying to suggest some water-the-tree-of-liberty-with-the-blood-of-tyrants nonsense. History is replete with great examples of tyrants, and none of them have been sourced in the American presidency yet.)

The Espionage Act itself, and its amendments, have been the subject of historical, legal, and philosophical criticism. Using it with such frequency to pursue leakers is an interesting historical turn that is, to my knowledge, quite unique to this administration. But I admit that despite my undergrad- & grad-level courses in 20th-century American history, my awareness is likely colored at this point by the frequency with which the Espionage Act is being applied and discussed in such a concentrated period of time.

I'd be quite interested in seeing more information specifically on factor 1, but from a broader frame of reference that encompasses liberties taken with government secrets since WWI and the Espionage Act's enactment. If we had enough information on factor 2, that would also be enlightening. Factors 3 and 4 appear to be somewhat discoverable, if enough information was available for interrogation. One could determine the viability of factor 3, while factor 4 is the only one that starts to wander into somewhat speculative territory (at least until we're far enough beyond the Obama administration that we can interrogate primary sources to determine its explanatory power). You're right that all four factors (and perhaps more) can be true.

Anyway, thanks for the thoughts. I'm going to try digging up more info on these cases.

I don't know if he's a sociopath or a pathological liar. But he seems to be doing the exact opposite of what he's saying in public. He seems pretty shameless about it, too. I mean he likes to talk a big talk about civil liberties, like he's some kind of Martin Luther King on TV - and then the next day he's acting like Nixon or McCarthy or worse.

And even if he appears to be doing something right, what he's doing actually has an evil intent, like I hear those new DoJ policies that are meant to "protect" the press, actually have a pretty narrow definition of the press, so that not everyone falls under that category and only certain journalists. So he's basically limiting the 1st amendment through these policies, at the executive level.

Well, this is a super helpful comment. Let's have a discussion about whether President X is a sociopath or a liar!

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.

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.

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.

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).

Well, that's not entirely accurate. Many states have shield laws. They just don't apply at the federal level.

Oh, of course. I feel that there should be, however :)

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.

Here's the decision: 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...

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?

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.

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.

There isn't, and never was, any protection for journalists.

Journalists wanted to believe there was, and frequently acted as if there was, but there isn't. This is just affirming that well known law.

Now you might say it would be a good thing if such a law exists, and journalists certainly think so - and would have an easy time spreading their message. But as is no such law exists.

This depends on how you argue ... some lawyers think this is covered under the freedom of expression. As far as I know there is also some international law covering the protection of sources. Yet, I'm not sure and have no clue about law :)

I wonder if there is a legal loophole wherein by becoming legal counsel for a source, you are no longer required to divulge anything they tell you due to attorney-client privilege. It would require the right to practice law, but it works on paper (obviously I am not a lawyer).

Client-attorney privilege primarily protects the communication with the client, not the identity of the client - which is rather counter-productive for a journalist.

I was thinking in terms of testifying against a client ("They leaked me Document X"), as opposed to revealing their identity.

On the other hand, it could provide some degree of plausabile deniability, wouldn't it? "Sure, I talked to X several times. I also talked to Y, Z and <a gazillion of other people who look important, but aren't>. But I can't tell you about what -- you know, client-attorney...".

A glance at where people are in an organizational structure will usually make the leaker stick out like a sore thumb.

I don't see how this fits with leaked information. Are you supposed to tell a judge that it's privileged information, but you printed it in your newspaper?

Those lawyers would be wrong. I can see how they would want that but there is no law to back it. Also, the US isn't governed by international law so they would not be bound by it unless there was a treaty and that treaty didn't contradict anything codified in our Constitution.

You guys are confusing federal and state laws. Many states have shield laws protecting journalists from being held in contempt (there are cases where this is voided, but that's not important). Anyways, while states might have this, this doesn't apply in federal court, as there is no federal law.

And journalists know this.

Those laws are also often qualified, so that the state can't use journalist sources as a first resort, but can fall back on them if other avenues of investigation are exhausted.

Yes, I did mention that. =)

There is also no law that says the government can't seize phone records, email, etc. from 3rd party providers.

Let's face it ... any kind of laws like this are just delaying the inevitable, which is that organizations will keep any data they can, whether they are private companies like facebook, or governments.

So how about instead we push for greater transparency in everything? If journalists are required to reveal their sources, so should the NSA and CIA. Stop with the "national security" excuse to take away civil liberties. In this day and age, classified intelligence secrets may be more damaging than helpful, the same way that patents are more damaging than helpful in a fast-moving industry like software.

Have journalists even really believed there was? I am not a journalist, but know of the tradition of reporters protecting their sources. IIRC several have famously gone to jail for contempt of court rather than reveal a source. So I'd be surprised if any journalists thought there was a legal basis for refusing to disclose a source if ordered by a court to do so.

So, there is, but it's not a constitutional privilege, and not federal law.

About 40 states have what are called "shield laws", that give various forms of journalism protection.

The closest you get federally is Branzburg v. Hayes, where the reporter lost and was forced to testify. In it, the supreme court established a test for when you could force journalists to testify.

The DOJ also has self-imposed guidelines on journalist privilege that they try to follow.

People also think there is a doctor-patient privilege, but that doesn't exist federally either (yet exists in many states).

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

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."

>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?

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.

I don't think it's accurate to characterize it as "taking away of such protection", when such protection has never existed. Journalists being compelled to disclose their sources and testify in a criminal trial is not new, and they've been jailed in the past for refusing to do so. One of the more famous is probably Myron A. Faber, in 1978 (http://en.wikipedia.org/wiki/M._A._Farber), because it led to extensive litigation, but there are many other cases both earlier and later. Another one got a lot of press in the early 1970s because it involved a reporter refusing to disclose who leaked him information from the Charles Manson grand jury: http://www.nytimes.com/1987/03/06/obituaries/william-t-farr-...

I believe the longest such imprisonment was Vanessa Leggett, who was jailed for about 6 months in 2001 for refusing to testify before a grand jury: http://www.nytimes.com/2002/01/05/us/writer-who-was-jailed-i...

Maybe such protection should be created, but that's a quite different question from the apparently common, but incorrect, belief that it existed (even as a de-facto practice) and has recently been abrogated.

> Maybe such protection should be created, but that's a quite different question from the apparently common, but incorrect, belief that it existed (even as a de-facto practice) and has recently been abrogated

I think we should have some sort of common law press privilege, like the client-attorney privilege. The tricky part is figuring out who should be entitled to it, especially in this day and age of blogs and whatnot.

"accreditation" is pretty easy, and grants some rights and responsibilities for journalists in other countries. For example, journalist photographers in England get protections for their images that other photographers don't get.

The US already categorises people as "journalists" or not with the Visa program. (http://travel.state.gov/visa/temp/types/types_1276.html)

That's a pretty intriguing idea, as is a sibling's thoughts on accreditation.

Are you aware of any sources that deal with this particular idea, or is it a pet theory? I'd be pretty interested in reading on any legal scholars discussing the idea.

A number of states have media-shield laws that protect reporters (in some cases, and for some definitions of "reporter") from being compelled to testify about sources in state-court proceedings. I don't know as much about those as I'd like; a plus of looking at them is that there's some history illustrating how they actually work in practice. To take one facet of "who counts as media?" that varies between states, here's an investigation of which states' media-shield laws cover student newspapers and the like: http://www.splc.org/knowyourrights/legalresearch.asp?id=60

One issue that comes up for me is that the justifications seem a lot stronger in some cases than others. For example, leaking the Pentagon Papers has some kind of public-interest justification, while the reporter linked above who leaked confidential testimony from the Charles Manson grand jury seems more like he was just looking for something sensational that would sell newspapers. But if a kind of public-interest/whistleblower restriction were included in a shield law, that would add probably undesirable ambiguity.

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.

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.

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.

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.

Are you sure this sentiment was worth almost 300 words?

Let's just agree to disagree.

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.

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...

>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.

It's only "the most obvious one", if one is blind to the discussion and intent, and mistakes the parent to mean:

"This administration is walking all over civil liberties and constitutionally protected freedoms -- and by these words I only mean the protection of the press sources and nothing else this administration has walked all over".

Which of course is a completely bogus interpretation.

This is exactly the same kind of disingenuous.

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

Amendment 9: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Seriously, the snark isn't required. My comment said nothing about a constitutional protection for journalists not being compelled to divulge sources by the courts. My comment said nothing about specifics of constitutionality in the particulars of this case. I see issues, but I did not suggest what you've interpreted.

Since the NSA issues broke, you've recently popped on my comments in much this same way—read more into a statement I've made than is there, and just run with giving legal commentary only tangentially related because you've zeroed in on the way you've interpreted the words, instead of clarifying if your interpretation matches my intention. Maybe that's just what lawyers do. I really appreciate your commentary and expertise. But would you mind maybe exercising a bit more restraint? Is it going to kill you to pose a non-snarky question asking if the way you've interpreted my statement is correct?

I've established elsewhere that I am not a lawyer, but trained in philosophy, and particularly political theory, instead. When I comment on things, it is from that perspective, not from a juridical precedence perspective, like you. If you want to engage the philosophical issues, cool. If you want to engage practical issues with the philosophical ones, cool. If you want to challenge points with problems posed by legal precedence and practice, that's awesome, cos I love that stuff (I appreciate the mention of Floyd, as it reminds me to pick up his work). But we've interacted enough in the last few weeks that I'd enjoy it far more if you made sure I was making a statement about legal precedents before attributing them to me with snarky callouts.

> Remind me where in the Constitution it says ...

There's a lot that the Amendments, including the First, don't say. They are not literal descriptions of what specifically is and what specifically is not allowed. They set the tone for the kind of things that should and should not be allowed.

When you judge a practice, or a law, against the First Amendment, you don't look for that specific practice in the text, you judge how much that practice supports or opposes the amendment.

The amendment does specifically mention the press, in a general way. The press does need information to function, and discouraging access to that information would tend to weaken the amendment. Which is why we're seeing credible discussion today that the NSA's dragnet metadata collection violates not only the Fourth Amendment, but the First, because the collected metadata is data mined for associations, which could tend to discourage and punish (room for discussion) "the right of the people peaceably to assemble."

Is the notion of possession limited by jurisdiction?

If the reporter lives in the US, but does all his or her computing over ssh to a server in another country, that means that all the evidence is outside US jurisdiction. They don't possess the evidence, merely access it.

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

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

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?

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.

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

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

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

Australia doesn't have a '5th' to take in the first place. It can be used against the common citizen that they refused to talk to police or to testify in certain circumstances. It's not going to prove that you're guilty, but it is allowed to add context.

http://en.wikipedia.org/wiki/Right_to_silence#Australia

This being said, since the internet came of age, Australian journalists have hardly been behaving in a way that would suggest they deserve increased protections...

I know, which is one of the many reasons I (ineffectually, before I found out I was going to cause nothing to change at that point) argued for a Bill of Rights when I was involved in youth politics.

I was just giving another perspective :) my final question was aimed at a US audience, I was truly curious how it worked there RE. Not incriminating other people

A journalist here just went to jail for not revealing her source to the court because one of our mining moguls dragged her into a trust case due to reporting on info regarding to it. Pretty horrid in my opinion.

We have no truly defined rights here in Australia. That's what my law degree basically taught me. (that is exaggerating a little :P)

It does not extend to your source. You invoke the 5th only for yourself.

No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying.

They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime.

In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.

"However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime."

Unless they are being charged with conspiracy:

http://www.washingtonpost.com/local/a-rare-peek-into-a-justi...

That's a good point. A plus side of such a precedent is that it might strengthen the position of journalists asserting a 5th-amendment right not to testify (assuming the government doesn't grant immunity up front). Conspiracy is so broad that anything they say about their relationship with the person in question could potentially be used against them, giving a good basis for invoking the 5th.

On principle, though, it seems journalists typically wish not to appear as witnesses at all, which makes it harder for them to use that approach. Except in limited circumstances, like choosing not to appear as a witness in your own criminal trial, the 5th amendment doesn't protect failure to appear; to invoke it you'd have to show up on the witness stand and then refuse to answer questions whose answer you felt might be self-incriminating. Of course, you could blanket do that to every question except bare factual ones that ask for your name and the like. But you'd still have to show up, and on principle journalists seem to have a view that they should not appear as witnesses in such cases at all (which can lead to them being held in contempt of court for refusing to appear).

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.

"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.

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?

"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.

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.

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.

The First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The implied distinction between freedom "of" the press and freedom "for" the press is sophistry. See http://en.wikipedia.org/wiki/Freedom_of_the_press_in_the_Uni... for several important examples demonstrating this.

I looked and couldn't find anything indicating journalists had privileges beyond those held by other citizens.

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

Wasn't something like that published recently?

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

The traditional way is mixmaster remailing - mail a letter containing a letter, with instructions to remail the innermost letter, in blind cover. It's a physical instantiation of the way Tor works, and the way early email mixmasters worked. You can use additional 'hops' if you are worried about it.

http://en.wikipedia.org/wiki/Mixmaster_anonymous_remailer

That said, the problem is that most of the time the data you're sending outs you in some way.

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.

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.

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.

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

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

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.

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

[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.

Yes, and that's what journalists want to mean when they promise to protect their sources.

Now, a state might have a shield law (I believe most do), but they don't apply at the federal level. Anyways, that there is not federal shield law is why journalists generally make a big deal out of them protecting their sources. If it was a matter of course, a protection they were guaranteed, then it really wouldn't be a big deal. It would be a meaningless platitude.

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?

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.

Reply on news.ycombinator.com