Privacy Act cases may be the biggest threat forcing reporters to reveal their confidential sources.
There's plenty $500 a day can buy. In the courts, where journalism and the law frequently collide, prosecutors and plaintiff's attorneys increasingly are hoping such a sum compels reporters to reveal their sources.
In Washington, D.C., fines might top $1 million total for five reporters from four news organizations who were ordered by a federal judge in August 2004 to pay $500 a day for refusing to name their confidential sources. The fines were stayed pending appeal.
The judge applied these fees to a case brought under the Privacy Act, which more and more is being used to go after journalists who report on governmental affairs. Here, the plaintiff, Los Alamos nuclear scientist Wen Ho Lee, is using the act to seek the identity of government sources he says he needs to prove his Privacy Act claim against the government. The act has also been used recently by Linda Tripp and Steven Hatfill.
When a journalist sits in jail - as New York Times reporter Judith Miller did for nearly three months - there is often little effect on the company's bottom line. But a $500-a-day fine against a reporter gets a company's attention. It already has the attention of some editors.
"This is uncharted territory," said Andy Alexander, Washington bureau chief for Cox Newspapers and chairman of the Freedom of Information Committee for the American Society of Newspaper Editors. "After the decision in the Lee case, plaintiff's attorneys are going to be emboldened. They see an entirely different route to getting at reporters' notes."
By using the Privacy Act, Lee has chosen a path that represents a serious threat to the reporter's privilege. In cases from California to Washington, D.C., federal courts are interpreting the act in a way that eviscerates the privilege.
"The ramifications of criminalizing the dissemination of this information is breathtaking," said attorney Lee Levine of Levine Sullivan Koch & Schulz, who represents two of the five journalists in Lee v. Department of Justice.
Lee, who was indicted on 59 counts of mishandling computer files in an espionage investigation at a New Mexico nuclear laboratory, pleaded guilty to one count in 1999 while the government dismissed the other 58.
Lee then sued the Department of Energy, the Department of Justice and the FBI under the Privacy Act, claiming the agencies disclosed personal information about him to the media. After most of the government defendants cited privilege and refused to answer questions during Lee's discovery, he subpoenaed reporters Jeff Gerth and James Risen of The New York Times, Josef Hebert of The Associated Press, Bob Drogin of The Los Angeles Times, and Pierre Thomas, formerly of CNN and now with ABC News.
Each reporter refused to reveal his source, claiming the protection of the reporter's privilege. U.S. District Judge Thomas P. Jackson held them in contempt, fining each $500 per day. Lee also subpoenaed a sixth reporter, Walter Pincus of The Washington Post, who was held in contempt and has appealed separately. His case was argued in August in U.S. District Court in Washington, D.C., but die judge has not yet ruled. The other reporters have filed a petition for rehearing in the appellate court and await a decision.
The fining of reporters has some in the news business worried, Alexander said.
"Not enough editors are concerned about this," he said. "It's a huge problem lurking on the horizon and just now entering people's consciousness. Imagine a small newspaper getting hit with fines of $1,000 a day. They'd be out of business quickly. It puts tremendous pressure on the media."
The concern grew on July 28 when the U.S. Court of Appeals in Washington, D.C., ruled that the journalists' privilege is outweighed by Lee's interest in compelling disclosure. (The court threw out the contempt citations against Gerth because he testified under oath that he had no confidential sources regarding Lee and did not know the identity of confidential sources who provided information about Lee for articles Gerth co-wrote with Risen for The New York Times. …