DoJ subpoena guidelines for journalists | Confidential source agreements

[Aimee Farr]

Even the most aggressive of news organizations roll-over, often contrary to
their internal policies. It is their token defense of journalists that has
led to the continued erosion of shield laws and the First Amendment. (I
don't know that Declan is a member of the subpo club yet, but I'm sure the
opportunity will present itself.)

[IS IT PRESS?]
Choate said:
> He has a digital 'press' in cryptome.org just like ssz.com or pgp.net.
> Every one of these sites should be accorded the protection of the
> Constitution without question.

But all speech is not equal. In fact, there is precedent running the other
direction. (Indeed, Jim, precedent runs in the other direction for most of
your arguments. I don't mean this disrespectfully.) For example, media
defined as "persons who gather and disseminate news on an ongoing basis as
part of the organized, traditional, mass media." Matera v. Superior Court,
170 Ariz. 446, 448, 825 P.2d 971, 973 (Ct. App. 1992) (holding that
professional author writing a book about the "AzScam" sting operation was
not a member of the media and thus was not protected by the shield statute).
First Amendment mileage in your state may vary. Nontraditional media, such
as online collaborative media, might not receive the benefit of state shield
statutes. Other sites might be seen as collections, rather than "media." It
probably wouldn't hurt to construct a web site, both in form and content, in
a fashion designed to give one the best shot at the benefit of state shield
laws (where applicable) and weighty First Amendment press considerations.

[CONFIDENTIAL SOURCE STATUS - Related topic]
Many of you work in sensitive positions, or are otherwise close to
controversy. The following are considerations for a confidential
reporter-source agreement, which I thought might be of tangential interest
(many reporters won't deal with "nym sources":

o confidential source (not "off the record")
o reporter's scope of authority/authorization to commit (maybe it's an
intern)
o one-time or continuing reporter-source agreement
o ID disclosure to editor (and do you trust THIS GUY?)
o use of attribution
o use of quotes (normally, you want them to paraphrase you)
o indicia of affiliation, sex, and other identifying characteristics
o public disclosure of your motive/interest, agreed-upon motive/interest
statement
o scope of purpose and use ("deep background" only?)
o timing of publication, scope of publication (good luck)
o confirmation from multiple sources (lead source or primary source?)
o means of contact, communication protocol (Subpoena trick: go for third
party communication routes, cell phone provider, etc. to run around the
journalist and the shield laws.)
o handling of notes, documentation and memoranda (commingling, destruction,
etc.)
o limitations: you lie, a lawsuit results, criminal investigation
o legal defense provisions
o opportunity to confirm/review/refute (forget it)
o legal recourse / liquidated damages
(misc. boilerplate blah-blah)

Most of the above assumes you are giving them "THE STORY OF THE CENTURY."

o If you achieve the _miracle_ of confidential source status: DON'T LIE.
Don't even embellish.
o While there is some support for legal recourse against the
reporter/newspaper, it will probably be of little consolation.
o State shield laws vary. State case law varies. "It depends." The law may
require disclosure. Secure legal counsel and find out, certainly in a
criminal matter.
o Is it a REAL investigative reporter? They know how to protect confidential
sources.
o The reporter must justify why you deserve this status to those on-high --
why you should be trusted. Sow your fields ahead of time.
o Go with a reporter you trust (or a reporter with an reputational interest
in your community - plug for Declan). I would go with some small newspapers
before some major news orgs, many of which have horrific track records in
this regard. It's the reporter that sits in jail for you. Ask around
http://www.spj.org and http://www.ire.org .
o Is there another way to get this information to the reporter with a
credible, named source?

I certainly don't represent myself as an expert in this area, and it's been
a while since I had cause to review it. ;-)

Disclaimer: "This is not legal advice because you didn't pay me for it. It's
general information. It's probably ill-suited to any particular situation
you might have. You always need a lawyer. Always. You should take your
lawyer with you everywhere, like a pocket squirrel."


	-Aimee

A lady will not ask for the service of your handkerchief, even if in need of
a tourniquet.