Needed: More Than a Paper Shield

By Davidson, Sandra; Herrera, David | The William and Mary Bill of Rights Journal, May 2012 | Go to article overview
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Needed: More Than a Paper Shield


Davidson, Sandra, Herrera, David, The William and Mary Bill of Rights Journal


[I\t is essential to the democracy of the United States that journalists may report important information to the public without fear of intimidation or imprisonment.1

INTRODUCTION

"When governments repress their people, press freedom is among the most powerful vehicles for exposing misdeeds," declared United Nations Secretary-General Ban Ki-moon on World Press Freedom Day 2011.2 "Today it is the peoples of North Africa and the Middle East mobilizing for their democratic rights and freedoms," Secretary Ban continued, "[a]nd they are doing so with a heavy reliance on new media."3 WikiLeaks could not have been far from the Secretary's mind. The website's slow release of 25 1,287 diplomatic cables from the U.S. State Department, beginning in November 2010,4 has been cited as a contributing cause of the 2011 "Arab Spring" uprisings in Tunisia, Egypt, Libya, Syria, and elsewhere.5

For those interested in shield laws for journalists, WikiLeaks exemplifies the new, complex reality facing the legal community.6 The website maintains a policy of protecting its sources, even from news outlets with which it collaborates on document releases.7 But protecting it from whom? WikiLeaks ' servers are located worldwide,8 so it has no real home. One scholar termed it "the world's first stateless news organization."9

And protecting WikiLeaks against what? WikiLeaks' founder, Julian Assange,10 has not clearly stated how he received1 ì the diplomatic cables - nor the Brobdingnagian caches of military reports from the Afghanistan12 and Iraq13 wars released in July and October 2010 - so it is not clear that he or WikiLeaks would qualify as "j ournalists" under existing shield laws.14

The situation in the United States, which lacks a federal shield law, is equally thorny. WikiLeaks' release of the War Logs arguably affected support for a federal shield law.15 According to Washington Post reporter Paul Farhi, "news organizations thought they were cruising toward a long-cherished goal: Congressional passage of a federal shield law to protect journalists from being forced to reveal confidential sources. Then came WikiLeaks."16 WikiLeaks "complicated, and possibly imperiled," passage of a shield law, he said.17 But supporters of a shield law say it would not cover WikiLeaks, anyway, because WikiLeaks is a 'Virtual" organization, devoid of a physical address or "country of origin."18

WikiLeaks has collaborated with the New York Times and the Washington Post*9 Those relationships have become rockier over time, starting with a debate among the newspapers and WikiLeaks over redacting names from the Afghanistan documents.20 Although WikiLeaks ultimately attempted to scrub documents for informants' names, Assange at first was reluctant to do any redaction, and the "harm minimization" process, as Assange called it, was not totally successful.21 Some vulnerable people were still exposed, and less than forty-eight hours after publication of the Afghan War Logs, according to Nick Davies, an investigative reporter at the Guardian, competitors of "The Guardian and The New York Times ran big stories saying, 'We've been on the WikiLeaks Web site. We found material which could get people killed.'"22 The New York Times said that its search through a sample of the WikiLeaks documents found "the names of dozens of Afghans credited with providing credible information to American and NATO troops" and that the Times, Guardian, and Der Spiegel had only posted a selection of redacted WikiLeaks documents containing no identifying information that could jeopardize informants' safety.23 Martin Smith said that the New York Times "lost trust" in Assange's redaction process and would not link to WikiLeaks.24

Could the United States government order Assange to identify his source? Leaving aside jurisdictional considerations, Assange could not be ordered to name a source if indeed his software design prevented him from gaining that knowledge.

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