Recommendations for a federal law protecting journalists’ sources

The U.S. Department of Justice’s seizure of Associated Press phone records has highlighted the urgency of the need for a shield law guaranteeing the protection of journalists’ sources at the federal level in the United States, a need that Reporters Without Borders has been emphasizing for years. Following reports that the White House is supporting the reintroduction of a proposed federal shield law in the Senate, Reporters Without Borders has drafted detailed recommendations for such a law. “There is no freedom of information worthy of its name without protection of journalists’ sources,” Reporters Without Borders secretary-general Christophe Deloire said. “Spying on journalists’ investigative reporting violates democratic principles.” 1 – The future shield law must reaffirm the principle of the protection of sources as a pillar of freedom of information, guaranteed by the First Amendment. The bond of trust between journalists and their informants depends on the former being able to protect the latter’s anonymity, especially if the information is sensitive in nature. The lack of such a guarantee makes it much harder for journalists and news media to fulfil their duty to provide information. The possibility of violating the confidentiality of journalists’ sources should exist only in exceptional cases specified by the future law (see below). 2 – The future law should strictly limit exceptions to the protection of sources. Any departure from the rule of source confidentiality must be the subject of a specific, detailed and notified request. There must be a possibility of appeal, and there should be no implementation without prior judicial control. An exception to the confidentiality of sources can be envisaged if: - Identification of the source is essential in order to prevent an attack on the physical integrity or life of one or more persons. - Identification of the source is essential in order to prevent an imminent attack on the nation’s territory or vital interests (which was not the case with the Associated Press’s sources, as the agency’s May 7,2012 story was about a bombing that the CIA had foiled). 3 – The future law must extend the categories covered by protection of sources. The protection of sources must apply not only to journalists but also to all media employees and to all those who help to gather, process, prepare, produce or disseminate news and information, regardless of the media. The protection of sources should also apply to documentary filmmakers, the authors of books of a journalistic nature (even if they are not “journalists”), bloggers and netizens who provide information. 4 – The future law should extend the range of content covered by protection of sources. The protection of sources must apply not only to the identity of the person who was the source of the information, but also to information that could lead to that person’s identification. The protection of sources must also cover content that has not been published or broadcast, and personal information (including telephone data and emails) that could facilitate identification. 5 – The future law should penalize violations of the protection of sources. “Violating the confidentiality of a journalistic source” should be made a crime by the future law. Such violations should include trying to identify a source, using any information concerning a source, and revealing the source’s identity, especially publicly. Holding a public position should be regarded as an aggravating circumstance for offenders.