Uncharted Terrain: While It's Too Soon to Gauge the Extent of the Damage, the Judith Miller/Matthew Cooper Case Already Has Clouded Source-Reporter Relationships and Impelled News Organizations and Journalists to Reexamine Practices Ranging from Negotiating with Sources to Taking and Storing Notes

Article excerpt

When Danielle Brian read that Time Inc. was giving reporter Matthew Cooper's notes and e-mails to the special prosecutor investigating the leak of a CIA operative's identity, she was stunned.

"It was a bombshell for us when we saw what Time had done," says Brian, executive director of the Project on Government Oversight, a watchdog group that works with media outlets and provides trusted reporters with names of government employees and contractors who must remain confidential. "We had always worried about a sloppy reporter, but I never thought there'd be a concerted decision made to turn over names."

She e-mailed Mark Thompson, a Time reporter she respects and has worked with for 20 years, to tell him that the magazine's actions in the Valerie Plame case will have "profound ramifications" for future collaborations with her organization. For a June investigative story on nuclear power plant security, Brian had put Thompson in touch with people who could lose their jobs if their names became known. "In the future, I will, of course, do everything I can to assist you with your stories, but because of your editor's actions, I simply will not be able to give you access to people whose identity needs to be protected," Brian wrote.

Her hesitancy is precisely the response that journalists and media advocates feared would follow the Judith Miller/Matthew Cooper cataclysm. It's too early to gauge the damage the case has wrought, but its immediate impact has been to unsettle some reporter-source relationships and to cloud journalistic practices ranging from negotiating with sources to taking and storing interview notes.

A number of news organizations, including the two at the center of the Plame case--Time magazine and the New York Times--are consulting with attorneys and investigative reporters to find ways to guard sources' identities if notes and e-mails are subpoenaed. The reviews of standard journalistic techniques have raised sensitive questions, some of which are not resolved in the law and have produced no clear consensus among media lawyers. Who owns a reporter's notes? Should news organizations hand out laptops or external hard drives to give individual journalists--rather than the company--control over their work? How long should a reporter save notes? How far should a news outlet go in protecting a source and defying a court order?

As editors and lawyers revise internal policies, the prosecutor's actions in the Plame case and the dramatic jailing of Times reporter Judith Miller have rekindled efforts to enact a federal shield law that would protect reporters from revealing sources in most situations. Within the last 18 months, more than two dozen reporters have been subpoenaed or questioned about their confidential sources in cases before the federal courts, according to the Newspaper Association of America (see "Under Fire," February/March 2005).

The NAA, which represents newspaper publishers, is leading a coalition of more than 90 media and journalistic advocacy groups in pressing Congress to pass a shield law. As part of that effort, NAA staffers spent early August trying to document the dreaded "chilling effect" of the case so far.

"With banner headlines of a reporter in jail and others being pressured to turn over their sources, there has been a flurry of subpoenas and court battles seeking to compel reporters to reveal their confidential sources," the NAA wrote in an early draft of a document it planned to circulate on Capitol Hill. "When prosecutors and civil litigants are unable to obtain the information they seek through their own due diligence, they are now emboldened to use the judicial process to coerce reporters into fingering their sources. Confidential sources and newsrooms have noticed this coercive effort, and what has resulted is a chilling effect on the confidential source relationship. Confidential sources have retreated, newsrooms have become wary and the free flow of information to the public has been impoverished. …