The ability to speak truth to power is in part dependent upon trust in journalists to shield sources from exposure and reprisals. But in the era of mass and targeted surveillance; sweeping data retention policies; and the overreach of national security legislation, it’s becoming increasingly difficult to protect our sources.
It maps the challenges confronting legal source protection frameworks over the past decade – across 121 States. And the results are rather chilling.
We found evidence around the world that protections are increasingly at risk of erosion, restriction and compromise. Specifically, in many countries they’re being:
- Overridden by national security and anti-terrorism legislation
- Undercut by surveillance
- Jeopardised by mandatory data retention policies and pressure applied to third party intermediaries to release data that risks exposing sources
- Outdated when it comes to whether digitally stored material gathered by journalistic actors is covered by existing source protection laws
- And challenged by questions about entitlement to claim protection – as underscored by the questions: “Who is a journalist?” and “What is journalism”?
In one of the case studies featured, we examine the impact of these challenges on investigative journalism practice globally. There’s a trend of going back to ‘analogue basics’, there’s recognition that journalists need to be trained in defensive measures like encryption, and some suggestion that they might also need to train their sources.
A second thematic study examines the situation in Sweden, a State with historically very strong legal frameworks defending source protection – and it finds reform is required.
Finally, the study develops a model framework, which suggests that:
- Source protection should extend to all acts of journalism and across all platforms, services and mediums, and include digital data and meta-data
- Acts of journalism should be shielded from targeted surveillance, data retention and handover of material connected to confidential sources
- The potential detrimental impact on public interest journalism of source-related information being caught up in bulk data recording, tracking, storage and collection should be recognised
- State and corporate actors (including third party intermediaries), who capture journalistic digital data must treat it confidentially
- A transparent and independent judicial process with appeal potential for authorised exceptions should be established, and law-enforcement agents and judicial actors should be educated about the principles involved,
- Arbitrary, unauthorised and wilful violations of confidentiality of sources by third party actors should be criminalised
The study also makes a range of recommendations for civil society and journalism actors which I’d encourage you to examine – but with a view to taking action.
Because, without substantial strengthening of legal protections, and limitations on surveillance and data retention, investigative journalism that relies on confidential sources will be difficult to sustain in the digital era. And the cost could be that much public interest information, including stories about corruption and abuse, will remain hidden from public view.