Editorial by Reporters Committee for Freedom of the Press
The News Media and the Law, Fall 2012
Our cover story in this issue highlights two aspects of the important issue of electronic monitoring.
One concern is that such electronic snooping by law enforcement authorities is widespread, and journalists need more information on how such warrants are issued so that they can better report to the public about the administration of justice. Currently, many of the requests for search warrants properly filed with courts remain indefinitely sealed, even though the law requires that the targets of those investigations be notified.
But the other concern really hits home for journalists: information distributed through social media or other services like cloud-based computing is much more readily accessible to law enforcement officials than information kept in a newsroom or a personal computer. And authorities have not been shy about making demands for it.
Think of the implications for how you maintain information about sources and research for stories.
Using Gmail? Google may not fight to keep your interview notes and contact list private when faced with a subpoena or a search warrant.
Storing materials in “the cloud,” or Dropbox or any other service? What will they do when officials seek information from your accounts? Do you know?
And it’s not easy to fault those companies on these issues. Even when they do oppose subpoenas served for a user’s data, they often lose, because courts seem to be eager to defer to law enforcement interests in most of these cases. The next time, they’re not as likely to make the effort.
As our story makes clear, the federal laws governing how officials can search an individual’s electronic information are in desperate need of reform. A law passed in 1986 — in this case, the Electronic Communications Privacy Act — may seem like a contemporary regulation in other contexts, but in the world of the Internet, it’s ancient.
While it doesn’t actually predate email (the first email message, depending on how you define it, was sent sometime from 1969 to 1971), it certainly was enacted before most people knew what email was, and before it became such a dominant means of communication.
Put simply, there should be no legal difference between data you keep on your own computer (or in a handwritten journal, for that matter) and information stored on a server. Physically, the difference is significant; but there can be no doubt that in a modern communications age, the confidentiality of data stored electronically must be defined by the user’s efforts to keep it confidential (e.g., password protection and other security features), and not by the physical location of the magnetic medium that is used to record that information.
To argue that location is the significant factor is to decide that in the age of electronic communications, there simply is no right of data privacy.
Journalists already depend on this presumed confidentiality, whether they realize it or not. After all, who possesses your credit card and phone records, and what would that information reveal about your news sources?
We need to be aware that our information is vulnerable, and we need to keep fighting for the right to keep it confidential.