Posted Tuesday, April 25, 2006
Hey, Johnny and Joan Deadline: Are you paranoid that grand juries will demand to see your notes? Just a little wiggy about lawyers in civil cases subpoenaing the paper trail you assembled for your last big story? Fretting over the possibility that the NSA or other government snoops might have placed you under surveillance? Frightened that a court or agency will discover the identities of your confidential sources after obtaining your phone log or your e-mail?
Then you’ve come to the right column.
The man can’t subpoena that which does not exist. So, as long as you’re prepared to defy a court order and go to jail on a contempt charge, here are some privacy techniques proven in the field by mobsters, spies, al-Qaida, and tobacco companies.
Don’t Write Down Anything: Anything committed to paper or to a computer file can 1) end up out of your legal control; and 2) be subpoenaed. When your source ventures into sensitive national-security areas, think about putting your pencil down and learn to rely on memory. Or take cryptic notes that won’t identify your source to any outside reader and won’t help the prosecutor narrow his subpoena list.
Destroy Your Notes After Publication: If you can’t break yourself from taking copious notes, burn them the day your story appears. This tip will not necessarily improve your journalism. For instance, I’ve been saved countless times by ancient notes at the bottom of a drawer in my home office, and I continue to drop my notebooks there in hopes of writing the n + 1 story based on them. Notes also help protect you in libel suit defenses. If you decide to destroy your notes, make sure to 1) do it before the subpoena arrives so you can’t be charged with destroying evidence; and 2) be consistent, as a judge may decide to make your life miserable if he learns that you destroy notes about national-security stories on a tight schedule but preserve notes from other stories willy-nilly.
Use the Company’s Computer System Selectively: If you intend to protect your notes, don’t use your publication’s computer system. Just as Time Warner surrendered e-mails in the Plame investigation after exhausting all legal appeals, your boss will do the same. Keep your notes to yourself, and don’t compose early drafts of your story on the company’s computer or e-mail system, because those drafts might contain information you want to keep from the government. Give your editors your final draft of the story.
Encrypt Your Files: If you must keep voluminous notes, encrypt your files and then delete them with an industrial-strength program after publishing (the ones other people use for porn). Because you never know when a subpoena for your computer’s hard disk might be served, and nobody knows for sure whether the NSA can break commercially available encryption, the ultraparanoid may want to encrypt and save all files to an external thumb drive and destroy them upon publication. Imagine how smug you’ll feel when the IT police cart your computer away and all your sensitive data are safe in your pocket.
Use E-mail Judiciously: Unless you’ve encrypted your e-mail or use some anonymizer software, assume that everything you send can be intercepted and read. Some ISPs have been known to surrender e-mail without a search warrant, so don’t expect them to protect you. If you must use e-mail to contact sources, make sure to use e-mail accounts that don’t scream “MEMBER OF THE PRESS.” You don’t want your White House or Pentagon source to be reading his BlackBerry in close quarters where somebody might spot that he’s just gotten e-mail from the nytimes.com or newsweek.com domains. Don’t be lulled into using your office or home computer to send e-mail from your “secret” e-mail as records of all your Web activity are routinely saved to the system for the government’s prying eyes.
Beware of the Office Telephone: Prosecutors and defense attorneys love to subpoena phone logs to establish that a source and a reporter have conversed. There’s no law that says that a company must set up its phone system so that every incoming and outgoing call is perfectly logged, so news organizations should disable this function on their phone systems if they haven’t already. If your source must call you, have him cover his tracks by dialing the switchboard number and asking to be transferred to your extension.
Use Prepaid Cell Phones: If you must make phone calls, do like Tony Soprano and use a prepaid cell phone purchased with cash. If prosecutors succeed in subpoenaing your sources’ phone logs, the logs won’t automatically identify you as the sources’ contact. Destroy the phones after a decent interval. Given al-Qaida’s affinity for prepaid cell phones, they might not be 100 percent secure. For all we know, the cell-phone companies may share information on these with the government or otherwise crimp their security. Beware. (If you can’t afford prepaid cells, try pay phones.)
Get a Skype Account: If you desire 256-bit encryption protection for your phone conversations, get a VOIP phone system such as the one offered by Skype. Make sure your source does, too. But remember: While these calls may be extraordinarily difficult to tap, they do generate easily subpoenaed phone logs.
Skulk Around: Never meet a sensitive source at a location where you must sign in or show an ID. How stupid are you? Try underground parking garages at night.
Practice the Art of Conversation: The modalities of language are such that your source can tell you valuable things without actually saying them, which means he’ll be able to defeat the polygraph at Langley (if it comes to that), and you’ll be able to give truthful testimony to a grand jury if you agree to testify and outwit the prosecutor. Cough once for yes, twice for no, three times for maybe. In the overkill department would be a veiled message that states: “Out West, where you vacation, the aspens will already be turning. They turn in clusters, because their roots connect them. Come back to workÃ³and life. Until then, you will remain in my thoughts and prayers.”
Write in a Stealthy Manner: Obviously, the more sources on the record, the greater the reproducibility and reliability of a story. But reporters on the national-security beat could give sources better cover by writing in an oblique manner. The current American Journalism Review quotes Washington Post reporter Sue Schmidt as saying that at the Post, “now we might not say something is classified information or [from] a State Department source” when it is. Alas, taking the word “classified” out of a story is sort of like dressing Halle Berry in an awning: Will anybody want to look at it? Another way for reporters to protect sources is to write from assertion rather than citing current and former intelligence officials. I acknowledge that most of the “remedies” in this article will dilute quality journalism, but what else are you going to do?
You’re Only As Good As Your Source: If preserving a source’s anonymity is the reporters’ goal, it makes no sense for the reporter to take care in his tradecraft while the source stumbles around like Homer Simpson. FBI official Mark Felt, who was recently outed as Bob Woodward’s “Deep Throat,” was a remarkably self-protective source whose cagey leaks advanced Woodward’s reporting but didn’t lead back to the source (see the previous discussion of the art of conversation). Distribute this article to naive sources.
Create Diversions: Think Ocean’s Twelve.
A Manhattan Project To Create a Neuralizer: “Nothing can expunge knowledge from a journalist’s mind,” says attorney Bruce Brown of Baker & Hostetler. After all the documents and notes are destroyed and all the phone calls and e-mails are adequately masked, a subpoenaed reporter’s brain will still contain the information the prosecutor wants. If the American Society of Newspaper Editors would only fund the development of a “neuralizer,” such as was used in the movie Men in Black, reporters could reliably shed every memory about sources after the story goes to press.
Jack Shafer – Slate