By Associate Professor Aaron Caplan
This is the second in a two-part series originally published in the April 21, 2011 edition of the Los Angeles Daily Journal.
Anonymous sources: One piece of information journalists often wish to keep secret is the identity of their anonymous sources. This is not a new phenomenon. In the early 1970s, Branzburg v. Hayes held that journalists have no constitutional privilege to keep sources confidential from a criminal investigation (although later cases have found a partial privilege in civil cases). Some states reacted to Branzburg with journalist shield statutes, and proposals for a federal counterpart arise in Congress with some regularity.
The current architecture of the Internet is not designed for anonymous communication. For every exchange of data over the Internet, be it via e-mail or by viewing a website, a trail of metadata is automatically logged that includes among other things the IP (Internet Protocol) addresses of the computers involved. In many ways, it is easier to be an anonymous tipster using older media, such as oral communication, an unmarked envelope, or a phone call on a landline. The Internet makes it far easier than before for law enforcement to attribute communications to particular speakers and listeners - including communications between sources and journalists.
WikiLeaks claims to have developed methods for truly anonymous uploading of source documents by leakers. If this is true, it creates a practical means of evading the Branzburg rule - journalists cannot be compelled to reveal identities of sources they don't know. It is open to question how effective this anonymous sourcing is, given the widely reported allegations of prosecutors that Pfc. Bradley Manning was the source of the leaked State Department cables. It appears he was identified in part by the paper trail he left on his work computer, and in part by oral testimony of an acquaintance, and not from evidence from the WikiLeaks dropbox itself. Regardless, the story shows the continuing difficulty of accomplishing truly anonymous speech.
If perfected, an anonymous electronic drop box would have enormous practical implications for journalists hoping to shield their sources. But the technology has no impact on their legal ability to do so. Reporters may still be compelled to testify to their knowledge of sources to a federal grand jury; it's simply that the extent of their knowledge has changed. In the same way, Internet technology should not alter the existing First Amendment rules that provide legal protection to journalists who republish material supplied by anonymous sources, even if the source obtained it unlawfully. That principle was most recently announced in Bartnicki v. Vopper, a case involving not the Internet, but radio broadcasts of recorded cell phone conversations.
Powerful intermediaries: A lone leafleter could in theory communicate with an audience without anyone else's help, but it is literally impossible for a writer to communicate with a reader via Internet without the assistance of intermediaries. These include ISPs (Internet service providers), web-hosting services and other keepers of infrastructure, both public and private, along the way. As a practical matter, this dependence on intermediaries for Internet speech has two major effects. First, it gives the intermediary the power to disrupt communication. This has already happened at least once to WikiLeaks. Due to unilateral action by its domain name server provider, WikiLeaks was temporarily removed from the Internet, and only returned after changing its domain name away from the familiar ".org" designation. Second, investigations of speakers can proceed by questioning the intermediaries, who may well disclose information in their control without the knowledge or consent of the communicating parties.
The Internet gives far more power to intermediaries than some other technologies, but the concept of speech mediated by others is not new to the law. Traditional authors relied on publishers and bricks-and-mortar booksellers to transmit their ideas to readers. Publishers and booksellers could freely choose not to participate. The First Amendment regulates this choice only insofar as it limits the government's power to pressure intermediaries not to distribute officially disfavored works. Some channels of communication - particularly the telephone and telegraph - have been declared by statute to be common carriers that must be open to all communications, but this was a political decision rather than a legal one. The "net neutrality" battle is the latest variation of the ongoing debate over which media should be treated like common carriers.
The question of searches of speech intermediaries has arisen under Fourth Amendment law years before the rise of the Internet, with results that have dismayed privacy advocates. Decisions from the 1970s, most prominently United States v. Miller, held that a person has no reasonable expectation of privacy in information shared with even one non-privileged third party. For example, the government does not require a warrant to gather a suspect's financial deposit records, because after all, the suspect shared that information with those strangers down at the bank. The Miller logic has arisen with regard to the requests by the government to obtain information from Twitter about tweets exchanged among the founders of WikiLeaks. A court recently ruled, in effect, that the founders must not have cared about privacy if they shared their metadata with those strangers running the computers at Twitter.
The ubiquity of intermediaries on the Internet brings the shortcomings of the Miller principle to the forefront. But once again, the existence of the Internet does not change the underlying legal principle. If Miller is wrong with regard to the Internet, as many believe, it was equally wrong as applied to old-fashioned bank ledgers.
Should we be alarmed, or instead pleased, that the law seems generally oblivious to the hugely consequential fact that a service like WikiLeaks exists on the Internet? Our legal system should of course be alert to the possibility that speech through one medium may be so qualitatively different than another as to require different rules or different frames of reference. I suspect those situations will be rare, and WikiLeaks does not seem to be one of them.
Our most important sources of law - including, of course, our constitutional law - deal with persistent questions of human relations that can transcend media. The First Amendment protects the exchange of information generally, not just information memorialized in familiar ways. The Fourth Amendment protects privacy against overly intrusive government searching, even when that searching takes new forms. Because events can change faster than law can, we are fortunate to have a set of first principles that are sufficiently broad to allow meaningful application in novel circumstances.
This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.