New re­search: 11-point plan for pro­tect­ing jour­nal­ism sources in the dig­i­tal age

Newspapers & Technology Magazine - - Special To News & Tech - Julie Posetti Spe­cial to News & Tech

Editor’s note: This ar­ti­cle has been reprinted with per­mis­sion from WAN-Ifra.

Acts of jour­nal­ism should be shielded from tar­geted sur­veil­lance, data re­ten­tion and han­dover of ma­te­rial con­nected to con­fi­den­tial sources. That’s a key early find­ing of a study on the state of jour­nal­is­tic source pro­tec­tion in 121 coun­tries un­der­taken for Unesco by the World Ed­i­tors Fo­rum (within WAN-Ifra). Pre­lim­i­nary out­comes from the re­search were launched in Washington DC dur­ing the World News Media Congress in June.

The le­gal frame­works that pro­tect the con­fi­den­tial sources of jour­nal­ism — es­sen­tial to re­port­ing in­for­ma­tion in the public in­ter­est that may oth­er­wise never come to light — are un­der sig­nif­i­cant strain around the world in the dig­i­tal era. There’s now a need to re­vise and strengthen them — or in­tro­duce them where they don’t ex­ist, ac­cord­ing to the forth­com­ing Unesco-com­mis­sioned study: Pro­tect­ing Sources of Jour­nal­ism in the Dig­i­tal Age.

More than 100 coun­tries had some form of source pro­tec­tion frame­work in place in 2007, ac­cord­ing to the Pri­vacy In­ter­na­tional re­port Si­lenc­ing Sources. In many of the 121 coun­tries ex­am­ined in this new study (au­thored by WANIfra Re­search Fel­low Julie Posetti) it was found that le­gal source pro­tec­tion frame­works are be­ing ac­tu­ally or po­ten­tially: • Eroded by na­tional se­cu­rity and anti-ter­ror­ism leg­is­la­tion, • Un­der­cut by sur­veil­lance — both mass and tar­geted, • Jeop­ar­dised by manda­tory data re­ten­tion poli­cies and pres­sure ap­plied to third party in­ter­me­di­aries ( like ISPs, tel­cos, search en­gines, so­cial media plat­forms) to re­lease data, • Out­dated when it comes to reg­u­lat­ing the col­lec­tion and use of dig­i­tal data. Ex­am­ples in­clude: the ad­mis­si­bil­ity, in court, of in­for­ma­tion recorded with­out con­sent be­tween a jour­nal­ist and a source; the ex­tent to which ex­ist­ing source pro­tec­tion laws also cover dig­i­tally stored ma­te­rial gath­ered by jour­nal­is­tic ac­tors.

The study also found that source pro­tec­tion frame­works are chal­lenged by ques­tions about en­ti­tle­ment to claim pro­tec­tion, such as: “Who is a jour­nal­ist?” and “What is jour­nal­ism?” — which are mat­ters that in­creas­ingly re­quire case-spe­cific assess­ments.

What hap­pens when source pro­tec­tion is com­pro­mised?

Where source pro­tec­tion is com­pro­mised,the im­pacts can in­clude: • Pre-pub­li­ca­tion ex­po­sure of jour­nal­is­tic in­ves­ti­ga­tions which may trig­ger cover ups, in­tim­i­da­tion, or de­struc­tion of in­for­ma­tion, • Rev­e­la­tion of sources’ iden­ti­ties with le­gal or ex­tra-le­gal reper­cus­sions on them,

• Sources of in­for­ma­tion run­ning dry, • Self-cen­sor­ship by jour­nal­ists and cit­i­zens more broadly.

Many jour­nal­ists are now adapt­ing their work in an ef­fort to shield their sources from ex­po­sure, some­times even seek­ing to avoid elec­tronic de­vices and com­mu­ni­ca­tions al­to­gether. How­ever, while such tac­tics do help, they may be in­suf­fi­cient if le­gal pro­tec­tions are weak, en­cryp­tion is dis­al­lowed, and sources them­selves are un­aware of the risks.

Four con­di­tions for source pro­tec­tion

If con­fi­den­tial sources are to con­fi­dently make con­tact with jour­nal­ists, the study pro­poses four con­di­tions: • Sys­tems for trans­parency and ac­count­abil­ity re­gard­ing data re­ten­tion poli­cies and sur­veil­lance (in­clud­ing both mass sur­veil­lance and tar­geted sur­veil­lance) — as rec­om­mended by the UN Gen­eral Assem­bly, • Steps taken by Unesco States to adopt, up­date and strengthen source pro­tec­tion laws and their im­ple­men­ta­tion for the dig­i­tal era, • Train­ing of jour­nal­is­tic ac­tors in dig­i­tal safety and se­cu­rity tac­tics, • Ef­forts to ed­u­cate the public and sources in se­cure dig­i­tal com­mu­ni­ca­tions.

The study con­cludes that ed­i­tors and pub­lish­ers can play an im­por­tant role in pro­mot­ing public un­der­stand­ing of these is­sues, and in ad­vo­cat­ing for change at all lev­els.

11-point as­sess­ment

A ma­jor out­put of the study is an 11-point as­sess­ment tool for mea­sur­ing the ef­fec­tive­ness of le­gal source pro­tec­tion frame­works in the dig­i­tal era.

It was con­cluded that a model frame­work should:

1. Rec­og­nize the value to the public in­ter­est of source pro­tec­tion, with its le­gal foun­da­tion in the right to free­dom of ex­pres­sion (in­clud­ing press free­dom), and to pri­vacy. These pro­tec­tions should also be em­bed­ded within a coun­try’s con­sti­tu­tion and/or na­tional law,

2. Rec­og­nize that source pro­tec­tion should ex­tend to all acts of jour­nal­ism and

across all plat­forms, ser­vices and medi­ums (of data stor­age and pub­li­ca­tion), and that it in­cludes dig­i­tal data and meta-data, 3. Rec­og­nize that source pro­tec­tion does not en­tail reg­is­tra­tion or li­cens­ing of prac­ti­tion­ers of jour­nal­ism, 4. Rec­og­nize the po­ten­tial detri­men­tal im­pact on public in­ter­est jour­nal­ism, and on so­ci­ety, of sourcere­lated in­fo­ma­tion be­ing caught up in bulk data record­ing, track­ing, stor­age and col­lec­tion. 5. Af­firm that State and cor­po­rate ac­tors (in­clud­ing third-party in­ter­me­di­aries), who cap­ture jour­nal­is­tic dig­i­tal data must treat it con­fi­den­tially (ac­knowl­edg­ing also the de­sir­abil­ity of the stor­age and use of such data be­ing con­sis­tent with

the gen­eral right to pri­vacy), 6. Shield acts of jour­nal­ism from tar­geted sur­veil­lance, data re­ten­tion and han­dover of ma­te­rial con­nected to con­fi­den­tial sources. 7. De­fine ex­cep­tions to all the above very nar­rowly, so as to pre­serve the prin­ci­ple of source pro­tec­tion as the ef­fec­tive norm and stan­dard, 8. De­fine ex­cep­tions as need­ing to con­form to a pro­vi­sion of “ne­ces­sity” and “pro­por­tion­al­ity” — in other words, when no al­ter­na­tive to dis­clo­sure is pos­si­ble, when there is greater public in­ter­est in dis­clo­sure than in pro­tec­tion, and when the

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