Posted on Mashable.com
The Department of Justice issued Twitter a subpoena for access to the accounts of Julian Assange and several others in relation to its investigation of the whistle-blower organization, which released roughly2,000 classified cables.
As a result of its current law enforcement guidelines, Twitter
is going to divulge the information. The provision is fairly typical for technology startups to include in their policies as a way to protect themselves from getting involved in legal issues pertaining to the platform’s users. With such a policy, Twitter is not held responsible, and in many ways it should not be. According to the media lawyers we interviewed, this kind of government request is not unique.
Jodi Olson, a spokeswoman at Twitter, would not comment on details about the subpoena, but she said that “to help users protect their rights, it’s our policy to notify users about law enforcement and governmental requests for their information, unless we are prevented by law from doing so.”
That’s because most of such requests come with a gag order, and so companies like Twitter and Googlecannot notify the user that his or her information is being requested. What’s unique about the recent Twitter subpoena is that it became public. In this case, Twitter challenged the gag order and won. It then notified the parties whose information was being requested, including Birgitta Jonsdottir, a member of parliament in Iceland and former volunteer who is now challenging the order.
For a social service that has been regarded as a news source by many of its users, which include high-profile politicians, journalists and company CEOs, Twitter’s challenge to notify users when their information is being sought by a government entity is a step in the right direction in protecting users who may be exchanging sensitive information in the name of journalism.
A Broken System
Though it is not clear what sort of information the DOJ will find in the WikiLeaks Twitter accounts, it does have a possibility to yield correspondence with whistle-blowers. With such information being divulged, journalists should tread carefully when dealing with sources and sensitive information on the platform and not expect to provide any anonymity to sources reaching out to them via Twitter.
Prosecutors could simply seek a subpoena to obtain the information, regardless of the protection the news organization has promised. Although news organizations have often fought subpoenas, Twitter is a platform and simply provides a place for interaction between whistle-blowers and journalists to take place.
Many journalists, of course, are already cautious in any correspondence with whistle-blowers and dealing with sources who wish to remain to be anonymous.
Paul Lewis, an investigative journalist from the Guardian who uses Twitter regularly in his reporting, realizes Twitter is mostly a public forum where messages are sent in the open.
Lewis said for investigative journalists using social media, this requires a certain trade-off — often you have to let the online world, which includes competitors, know where you’re digging. But private direct messages are another matter, he said. When used by reporters, private messages on Twitter should be afforded the same journalistic privilege given to other private communication, such as e-mail or letters.
“But sometimes you have to presume someone will be watching or listening,” Lewis said. “If conducting a really sensitive online discussion with a source, I would never use Twitter, e-mail or even Skype
. Private encrypted chat is the safest bet.”
But that cautious approach relies on the journalist reaching out, not a source who has contacted a journalist through a social site or e-mail using his or her real identity. The little anonymity and identity protection on the web highlights a challenge investigative journalists are facing in corresponding with sources in the digital age.
Social Media’s Shield Law Loophole
The journalist cannot adequately promise anonymity on social sites like Twitter or others, but that won’t stop whistle-blowers from contacting journalists on those sites. Whistle-blowers will still reach out to journalists on those platforms because that’s where they are often most accessible. Therefore, it ultimately starts with protection from the platform.
Journalists may be able to offer some protection in knowing that the platform will not disclose source information. But this would take a serious restructuring of the current culture of companies that do not stand up for their users. Twitter’s move to notify its users is a step in the right direction.
But notification is not enough to provide protection to journalists whose information is being subpoenaed by a federal court. In the U.S., 36 states and Washington, D.C. have journalist shield laws — legislation that provides reporters a privilege to refuse to disclose any information or sources obtained during their reporting. The rest of the states either provide some protection or none at all. But because there is no federal statutory reporter’s shield law, Jane Kirtley, who teaches media ethics and law at the University of Minnesota, says that in all likelihood, there would be no protection for a journalist being subpoenaed on a federal level.
Kirtley notes there are federal attorney general guidelines, which discourage the use of subpoenas against the press, but nothing to outright prohibit them as long as the attorney general approves it.
The case with Twitter and other tech companies is that these are not considered to be subpoenas for journalists’ records, so even if there is a privilege, it is unlikely to apply to these records, Kirtley said. This is a loophole that gives journalists little protection or right to protect themselves in their reporting while using such sites.
If a journalist refuses to disclose information to a government entity requesting it in an investigation, the court can simply go to the platform of communication to get the records. With many social media sites playing a vital role in news distribution and watchdog journalism, this requires a stand from those sites against disclosing such information in a broken system that once recognized the value of protecting journalistic integrity.
But ultimately, the privilege of shield laws should also extend to the social platforms hosting the information that is shared between whistle-blowers and journalists. And until there is a federal shield law for reporters, protection for such newsgathering will be nonexistent. This is the only way to fix the broken system. Platforms can only protect their users to a certain extent. It then becomes a legislative issue around the protection of journalists and the Fourth Estate.
Images courtesy of iStockphoto, JordiDelgado and zimmytws
