Source confidentiality’s shaky future online

The mythology of news puts outsized importance on confidential sources. The image of shadowy informants whispering forbidden truths—very cool and, of course, deeply flattering to journalists.

The reality is less romantic. Reporters spend most of their time sifting contradictory and self-serving accounts from people who, far from dreading disclosure, are eager to be in the news.

Plus, confidential sources are rarely whistleblowers—vulnerable neophytes handing over files of grave importance while choking back their fears. Usually they’re savvy operators who want to remain off-screen and don’t want to undermine the ploy they hope the reporter will advance.

But source confidentiality has mythic importance anyway because it epitomizes something fundamental about the role journalists like to think they play—and, I think, the role the rest of society needs them to play.

That has to do with the press as sanctuary, a freestanding institution that people can turn to for protection and support. Just as the priest and the lawyer are entitled—indeed, are obligated—to honor the secrets they’re entrusted by people who seek their help, the journalist claims a similar privilege. Each serves institutions that have important work to do and need to stand independently and withstand outside compulsion to do it right.

That’s the idea anyway. And it’s a good one, which is why as new media arise in the emerging news industry, their advocates are keenly sensitive to any hint that when it comes to source protection the upstarts don’t deserve the same privilege as their established rivals.

So to the ruling last month by a New Jersey appeals court denying a blogger protection under the state’s reporter shield law. The law, like those of 35 other states, authorizes journalists to resist court demands that they disclose confidential sources. Here, the blogger, an ex-Microsoft employee named Shellee Hale, is being sued for defaming a tech company, and won’t identify sources she says she used in posting the assertions that prompted the suit.

The ruling is only the second time a U.S. appellate court has decided whether shield laws apply to bloggers, according to the New Jersey Law Journal, and it was widely denounced online as a blanket repudiation of the blogosphere. “Bad news bloggers: NJ Court says you are not journalists,” said FindLaw.com. “Bloggers are not protected by journalistic shield laws,” said Digital Trends. BigJournalism.com’s Jim Lakely called it a “backward looking, snobbish decision,” and offered a litany of scoops that bloggers unaffiliated with established news organizations had produced.

Bloggers were rightly dismayed by elements of the ruling. At times, the court skated uncomfortably close to basing its decision on Hale’s lack of affiliation with a recognized news outfit and failure to follow what the judges regarded as customary journalistic procedures, which they seem to think include fact-checking and getting comment from all parties. That’s really none of their business.

But the gist of the 48-page ruling, as Colleen Brondou wrote on findingdulcinea.com, “should provide comfort to bloggers.” That’s because it was a thoughtful attempt to answer the central question: On what basis should certain people have the extraordinary right to say no to a court, to refuse to give evidence that any other citizen would be required to produce.

This court’s answer was to reaffirm the importance of news, of enabling people to do the work of gathering and preparing publicly significant information for a mass audience. If that’s what Hale had been doing, the court said, she’d have been shielded. Instead, when she denounced an Internet technology company for its “illegal and unethical use of technology,” she was doing nothing more than posting the equivalent to a letter to the editor—not practicing journalism.

Now, I think the court was unduly dismissive of evidence that Hale was indeed engaged in a serious and sustained effort to unearth wrongdoing in the online porn business, an effort that sounded like journalism to me.

But the need to draw just these kinds of ragged distinctions is an unavoidable problem at a time when millions of people are posting, tweeting, friending and commenting online, and when even private comments have a limitless potential to go viral and reach vast audiences—when, in short, everyone can claim, with some justice, to be offering up much the same publicly accessible narrative and commentary on contemporary realities that not long ago was the exclusive work of salaried journalists.

True, asserting a reporter’s privilege for them all would emasculate the courts. Yet denying the burgeoning population of journalistic irregulars the ability to keep their word to sources would shrink their journalism—and consign the honorable tradition of press sanctuary to ever smaller havens.

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