The Internet, the Law, and the Press

The Internet is a powerful journalistic tool. It is a rich if not always reliable resource, an efficient way to communicate with sources and colleagues and, for better and worse, an essentially instantaneous way to reach readers everywhere. But it is merely a tool; it has not in any fundamental way altered the essentials of gathering and publishing the news.

Yet, as the law starts to grapple with the Internet generally, the incidental effects of that struggle on journalism may well disturb the bedrock premises that support our understanding of the status and nature of the press. The impact of the Internet on journalism in this broader sense is rich in ironies.

• The Internet, which seems so evanescent, creates a durable, comprehensive and difficult-to-protect record of the newsgathering process. This record has the potential to upend the balance of power between the press on the one hand and sources, competitors and litigants on the other.
• The Internet, which democratizes speech, will therefore inexorably withdraw from journalists the special status they have achieved in certain kinds of accreditation and in their ability to protect their sources and resource materials.
• The Internet, because it is global, will allow the laws of the most repressive nations to influence the conduct of journalists in the freest ones.

The Trouble With E-Mail

It used to be that many journalists felt put off by requests that interviews be conducted in writing. Part of this was macho posturing: “Nobody tells me how to conduct my interview!” And part of it, perhaps, was a reluctance to create a generally available record of the interview. Written questions are tangible and lasting, and they might surface years later in libel litigation, say, to demonstrate bias, preconceived notions or foolishness.

E-mail has changed this. Written interviews are now routine, and there is much to be said for them. While there is a cost in strategy and spontaneity, there are significant compensations for sources and readers. There is a higher rate of response, probably; more considered responses, certainly; and accurate quotations, necessarily.

On the journalist’s side, the compensations are fewer. Since e-mail is an invitingly offhand and informal medium, the sober reflection that went into written questions reluctantly supplied in the old days is diminished. The result is a not always attractive record of the news-gathering process, which can also often be said of notes. Unlike notes, though, the e-mail record is typed and comprehensible and is seldom capable of being truly expunged from the hard drives and servers on which it resides. It is in the hands of potential adversaries from the outset in any event and capable of being forwarded to countless further recipients with the push of a button.

The press’s Achilles’ heel in American libel litigation is inquiry into the newsgathering process. The Supreme Court set the bar awfully high for public figures seeking to establish libel, requiring them to prove not only the publication of a false and defamatory statement but also that it was published with at least serious doubts about its truth. This requirement was intended to be and is close to an absolute bar: What journalist publishes damaging statements she strongly suspects are false? In order that it not be a literally absolute bar, the courts have, understandably, allowed searching inquiry into the newsgathering process. Plaintiffs are allowed to try to prove journalists’ bad faith through circumstantial evidence of how the story was gotten and composed.

Snippets of evidence arising from this process have caused the press trouble in the past. A copy editor’s observation in a memo that she found a major theme of an article “impossible to believe” created substantial grief for The Washington Post in a libel suit, though the newspaper ultimately prevailed. Richard Jewell, the former Olympic bombing suspect, is trying to capitalize on another copy editor’s remark to a colleague in his libel suit against The Atlanta Journal-Constitution. “They can’t do it this way,” she said, about a columnist’s comparison of Jewell to Wayne Williams, a convicted child killer. “They” did, though, and Jewell’s lawyer was delighted to learn of the editor’s concerns.

In the old days, offhand comments like these seldom surfaced in subsequent litigations. They were oral and therefore easily forgotten and hard to prove or, if written, were often simply and irretrievably gone. The e-mail era magnifies the mischief stray comments can cause in two ways. First, some journalists’ e-mails fairly bristle with investigative zeal and dark humor. Second, even the most rigorous corporate “document retention programs” (that’s Orwellian newspeak for document destruction programs) can’t seem to delete e-mails from computers and servers. E-mail, it turns out, has the half-life of plutonium.

The problem is not confined to libel suits. News organizations have been quite successful in protecting confidential sources, notes, unpublished photographs, and similar materials from subpoenas—so long as only they have sole possession of the information. They have been less successful in protecting telephone and travel records held by others. Indeed, not infrequently, reporters learn of subpoenas to phone and travel companies only after their records have been produced to prosecutors, litigants like tobacco companies, and others.

That is bad enough, but those sorts of records do not directly identify sources and say nothing about the substance of what was discussed. A phone record, for instance, shows that two unidentified people talked for a specified length of time on two identified phone numbers. It reveals nothing, directly at least, about the substance of what was said. E-mails are different. They generally identify the sender and recipient and, more important, memorialize the substance of what was said. Yet most Internet Service Providers have shown no particular reluctance in complying with subpoenas for e-mail records. Here, too, there is not even uniformity about whether account holders are informed before their records are produced.

The e-mail interview gives rise to a final problem. As ABC learned in its investigation of the diet supplement Metabolife, there is nothing to stop the subject of an investigation from posting unedited interviews and other materials on its own Web site weeks before the journalistic piece is ready to air. ABC’s initial response was to protest this as an invasion of its editorial processes. This was, as the network later tacitly acknowledged, probably misguided: Subjects of news investigations have as much right to free speech, and on their own schedule, as the press does. But whereas an aggrieved subject of an upcoming exposé in the old days could do little more than make legal threats and call lonely news conferences, the Internet era allows the hunted to scoop the hunters.

The Trouble With Democracy

News organizations like to say that they are mere surrogates for the public who neither seek nor deserve special rights. But they do accept a few. The press pass is one example. And shield laws protect the press—but not others—from having to comply with subpoenas. Both require the government to decide who is and isn’t a member of the press.

This was never especially appetizing or legitimate, but it was not hard to implement. The local police chief had a pretty good idea who the press was in his town and, so long as he didn’t deny a press pass to a reporter whose work he disliked, the courts were not likely to interfere with his allocation of the passes. There were gray areas—student papers, “shoppers.” But the practical appeal of knowing whom you could allow past the police lines trumped the theoretical queasiness.

The same dynamic applied to shield laws. In the gray areas, there were academics, freelancers and book authors. But the importance of protecting the core journalistic processes, and particularly the confidential source relationship, from unwarranted intrusion overrode the problems of principle.

Everyone is a publisher now. And if everyone has a Web site, everybody is, arguably, in at least some circumstances, a journalist. The problem is not so much that one can’t distinguish the electronic equivalent of the lonely pamphleteer from The Wall Street Journal. Clever people can surely come up with neutral criteria that consider subject matter and circulation. The problem is that deciding whose speech is worthy of assistance or protection is an illegitimate function for the government. And it is harder to look the other way in the Internet age.

It is, unfortunately in a way, impossible to envision a world in which everybody who asks nicely gets a press pass and everyone who claims to be distributing information to the public gets protection from subpoenas. One can certainly imagine a world, though, in which no one gets either.

The Trouble With the World

It is not difficult to withhold controversial printed matter from countries that value reputation more highly than they value free discourse. You just don’t ship the book or magazine there. It’s not particularly unusual for American publishers to limit the distribution of their wares, even on an issue by issue basis, from Britain, Singapore, Malaysia and other countries friendly to libel plaintiffs.

But it is, for now at least, seemingly technically impossible to limit access to American Web sites from anywhere at all. Yahoo!, for instance, recently told a French court that it cannot comply with a French law prohibiting the sale of Nazi memorabilia without withdrawing the offending auction listings worldwide. An English court recently instructed The New York Times to delete a passage it had held libelous from the Times’s Web archives and other databases. The Times was technically unable to tailor its compliance to just its readership in the United Kingdom. It decided to substitute this message for the offending statement:

“PASSAGE DELETED. USERS OUTSIDE THE UNITED KINGDOM MAY OBTAIN A COMPLETE COPY OF THIS ARTICLE BY CONTACTING LEGAL@NYTIMES.COM”

Of course, a foreign lawsuit is only truly worrisome if the defendant has assets at risk. American courts have consistently declined to enforce libel judgments obtained in countries insensitive to our commitment to free speech. But global companies have assets everywhere, and a victorious libel plaintiff can probably collect his money not only where he won it but also in scores of other countries that will unthinkingly honor the libel judgment as a matter of international comity.

And this doesn’t involve only money. Many countries, especially Latin American ones, are not shy about prosecuting journalists for criminal libel. Two Times journalists avoided prosecution in Mexico a few years ago only because the authorities concluded that the offending article had been published only in the United States. It’s hardly clear that they would have reached the same conclusion in the Internet era.

The Internet is a wonderful thing. But it may do enormous incidental damage to the secrets, status and swagger of the American institutional press.

Adam Liptak is senior counsel in the legal department of The New York Times Company. He has written for The New York Times Magazine, The New Yorker, and Vanity Fair.