At the federal level, the question of reporters’ privilege remains, in the words of one prominent law firm “in disarray.”21
The Supreme Court recently rejected James Risen’s appeal,22 though without much explanation. Nonetheless, there are still a number of directly conflicting decisions in courts at the district level. At the core of these conflicts are ongoing gaps in interpretations of 1972’s Branzburg v. Hayes–the most recent Supreme Court decision related to reporters’ privilege. Though in Branzburg the reporter’s petition to quash a subpoena for appearance before a criminal grand jury was ultimately denied on the facts of the case, a concurring opinion by Justice Powell is sometimes interpreted as confirming the existence of some reportorial privilege, because in it Branzburg v. Hayes, Concurringhe asserts the importance of “striking the proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” While the Risen decision speaks poorly for the promise of any federal reporter’s privilege, even in cases where it has been upheld, Branzburg makes clear that any privilege applies only to journalists, not their sources:
“We note first that the privilege claimed is that of the reporter, not the informant, and that, if the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry, whatever the impact on the flow of news or on his future usefulness as a secret source of information.”23
Thus, reporters wishing to protect their sources must do everything in their power to prevent their being independently identified by law enforcement, as once this has been accomplished the source may be vulnerable to prosecution. In point of fact, reporter testimony often may be unnecessary to identify sources, as explicitly noted in Risen’s case. In granting Risen’s motion to quash his subpoena to appear before a grand jury, Judge Leonie M. Brinkema wrote that Risen’s testimony was probably unnecessary as the government already had “numerous telephone records, e-mail messages, computer files and testimony that strongly indicates that Sterling was Risen’s source.”
As noted, forty-nine states and the District of Columbia, meanwhile, have case law or legislation that offer journalists some protection from being compelled to identify their sources. As the foregoing discussion illustrates, however, the authorities rarely need to obtain this information via reporters’ testimony when journalists have been communicating with their sources digitally–the metadata associated with these communications is often sufficient to identify who is speaking with whom. Because of this, it is increasingly likely that even where some form of journalist privilege exists, reporters will never get the chance to invoke it; the kind of metadata collection/analysis being conducted at the federal level is known to take place at the state and local level as well.24
“This isn’t the NSA asking for information.” -Senator Edward J. Markey (D-MA)
Metadata and direct testimony, of course, are not the only means by which the authorities can obtain information about a journalist’s sources. Searches of digital storage, such as a computers, hard drives and mobile phones, may reveal source identities and more.25 Where the data in question has been encrypted, however, protecting it is still possible in certain circumstances.
A recent Seventh Circuit ruling held that forcing a defendant to decrypt the contents of a drive to which he had not already admitted having access and control was likely a violation of his Fifth Amendment rights. In some cases, simply requiring the act of decryption has been classed merely as “production” of materials–similar to handing over the key to a lockbox–and not subject to Fifth Amendment protection. Yet the Seventh Circuit pointed out that in some cases the act of production “has communicative aspects of its own”:
“…compliance with a subpoena tacitly concedes: (1) the existence of the documents, (2) their possession or control by the accused, and (3) the accused’s belief that the documents are authentic.”26
Thus, unless the government can “establish its knowledge of the existence, possession, and authenticity of the subpoenaed documents with ‘reasonable particularity’ ” one may be able to resist a subpoena that requires decrypting data in response to a subpoena. As indicated in this same opinion, however, Fifth Amendment protections can only be applied to communications which “relate a factual assertion or disclose information,” and do not generally apply to actions such as standing in a lineup or providing a handwriting sample. As a result, decryption mechanisms that require only a fingerprint or facial recognition may not afford the same level of legal protection.27