Does WikiLeaks have anything to do with the Internet?

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.