Oregon Humanities Spring/Summer 2007

Cover of Oregon Humanities Spring/Summer 2007
Kathleen Holt
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The Times versus BoingBoing.net

The changing roles of media secret-keepers in the Digital Age

By Alice Tallmadge

My significant other is a therapist who works with juvenile male offenders. The nature of his work requires him to keep information regarding his clients and their treatment confidential. But he is human, and at the end of some days needs to talk. So over the years I have listened to several redacted stories about faceless, nameless clients. Sometimes, to help me better understand a situation--and because I am a journalist and inquisitive by trade--I'll ask what I consider to be fairly generic questions: how old is he, does he go to school, have a family? If I press any further, my friend is likely to pause, lance me with a sober, cool stare, and admonish me sternly, saying, "Don't ask any more questions."

Our society entrusts its personal and collective secrets to a select group of professionals that includes therapists, attorneys, physicians, clergy, and journalists. A license or degree to practice any of these professions confers a mantle of responsibility regarding secrets. In most of these professions, the expectation is that the practitioner will keep information he or she is party to confidential except when necessary to transmit it to other professionals for the benefit of the client.

But I am on the opposite side of the fence from my friend when it comes to secrets. In my line of work, exposing secrets is a big part of what we do. The tips we receive are often shared with the hope or expectation that we will investigate and expose the issue or secret to the public. Part of our job is learning to discern which secrets deserve to be investigated, whether they should be publicized, and how to do that most expeditiously.

Indeed, for the past two hundred years, secrets have been journalism's "stock in trade," says Stephen Ponder, media historian and associate professor at the University of Oregon's School of Journalism and Communication. With access to information most of the public didn't have, the press--and later, broadcast media--gathered and investigated secrets and controlled how and when they were disseminated.

The history of how the press has carried out its role as a sanctioned secret-gatherer is checkered, with moments both forgettable and triumphant. In modern times, the press reached its acme as an institutional secret-breaker in the early 1970s, when Daniel Ellsberg's historic leak of the Pentagon Papers to the New York Times was followed by leaks from FBI insider Mark Felt, for years identified only as "Deep Throat" by Washington Post reporters Carl Bernstein and Bob Woodward. Publication of the Pentagon Papers, the military's own dismal analysis of the Vietnam War, helped hasten the end of the war, while Deep Throat's leaks led to the exposure of the Watergate scandal, the eventual jailing of high-placed administration officials, and the resignation of President Richard Nixon.

Like many who were involved in those tumultuous times, when it came to the tug of war between the government and the media on the issue of secrets, I came down firmly on the side of exposure, a decision that likely was a harbinger of my future career choice. I could understand that reporting certain truths might cause the government discomfort and even some temporary damage to the country's image, but it seemed to me that what was possibly going on outside the public's ken had the potential to be far more harmful to our democracy.

Mine was not a particularly revolutionary perspective. In a U.S. Supreme Court opinion on the publication of the Pentagon Papers, Justice Hugo Black reaffirmed the press's original mission: to ferret out secrets the public needed to know. "In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy," Black wrote. "The press was protected so that it could bare the secrets of government, and inform the people. Only a free and unrestrained press can effectively expose deception in government." To help it in its mission to investigate and bare secrets, the press developed its own institutional secrets--confidential sources that relay information about or shed light on the workings in inner circles of power.

The practice began hundreds of years ago. In 1722, Benjamin Franklin's older brother James spent a month in jail after refusing to divulge to the ruling Assembly the source of an article printed in his satirical newspaper, The New England Courant. "He [John] was taken up, censured, and imprisoned for a month, by the speaker's warrant, I suppose, because he would not discover his author," recounted the younger Franklin in his Autobiography. The press and the government have been battling over the press's rights to "not discover" their sources ever since.

In 1848, John Nugent, a reporter for the New York Herald, was arrested by the Senate and confined to a Senate committee room (and, at night, to the home of the sergeant at arms) for refusing to disclose who had given him a copy of a draft treaty to end the Mexican-American war, which the Senate was debating in secret. To protest the detention, Nugent's editor doubled his salary. Nugent continued to write stories from his comfy committee room, but wouldn't cave. After a month, the Senate freed him.

Forty years later, after a Baltimore Sun reporter was jailed for refusing to tell a grand jury the name of the source who had provided him with information regarding bribery of public officials, Maryland adopted the country's first reporters' shield law.

Fast-forward a little more than a century and we find the press still fighting for its right to bare secrets that are in the public's interest to know and to keep confidential the whistle-blowers and government insiders that help them. Even though most states have laws giving differing degrees of protection to reporters, Congress has never passed a federal shield law. In fact, in 1972, the Supreme Court ruled in Branzburg v. Hayes that the First Amendment doesn't protect reporters from having to divulge their sources when called before a grand jury.

The District Court of Appeals for Washington, DC, cited the Branzburg case in February 2005 when it ruled that Mathew Cooper and Judith Miller, two journalists called before a federal grand jury in the highly publicized Valerie Plame controversy, were not protected from having to answer prosecutors' questions about their sources. Miller, a reporter for the New York Times, spent eighty-five days in jail before agreeing to speak with prosecutors.

The Cooper/Miller legal showdown may prove costly for the press and its information-gathering process. State courts had for several years interpreted Branzburg to mean it gave reporters some degree of protection; at a time when the government has intensified its efforts to silence leakers by cracking down on reporters who try to protect their sources, the recent ruling reaffirms the court's original decision that it doesn't. Without assurances of anonymity, many media observers say, sources will be reluctant to come forward, which will make ferreting out important secrets all the more difficult.

"This isn't just about the press's rights; it's about the public's rights," said George Washington University media professor Mark Feldstein, in a recent interview with Frontline reporter Lowell Bergman. "When the press is curtailed, when the press is censored, it's the public that's hurt. It's the public that doesn't get the information it needs in a democracy to make intelligent voting decisions."

Cooper and Miller are not the only ones who've come up against the growing antipathy to the concept of reporter privilege. Four other reporters were subpoenaed to appear before the grand jury in the Plame case, and all testified. As discussed in the recent television series Frontline, the New York Times was threatened with possible legal action after it published two high-profile stories that revealed secret operations connected to the war on terror.

The outcry from the Bush administration and some lawmakers about the Times' stories focused on national security issues, but there have also been skirmishes over the control of information itself. Two San Francisco Chronicle reporters were threatened with imprisonment after they refused to reveal who gave them transcripts of testimonies made before a grand jury during an investigation into the use of performance-enhancing drugs. (They were spared when an attorney in the case came forward and identified himself as the source.) An independent journalist in San Francisco was in prison for seven months for refusing to hand over to federal investigators a videotape he made of a street protest, saying that giving them the tape would betray the trust he had formed with the group who led the protest. In early April 2007, he made a deal with federal officials and was released.

The prognosis for continued media freedom to investigate secrets and maintain source confidentiality might appear appallingly bleak to those of us who champion transparency over tight lips and closed files. But a quiet revolution that emerged in the same period of time as this pinching back of reporter freedoms may be an unexpected boon. It is grassroots, global, and beyond the reach of the government's ability to control. Tech hipsters call it Web 2.0. The rest of us still call it the web or the Internet.

A few months ago, Time magazine took the momentous step of naming as its "Person of the Year" any and all users of the World Wide Web.

"For seizing the reins of the global media, for founding and framing the new digital democracy, for working for nothing and beating the pros at their own game, Time's Person of the Year for 2006 is you," wrote Time contributor Lev Grossman.

The magazine heralded the millions of bloggers and video-podders for their fresh, creative, and sometimes brazen interaction with technology as well as the news and events of the day. The difference between yesterday's Internet and today's Web 2.0., Grossman wrote, is that the current Web has become a "tool for bringing together the small contributions of millions of people and making them matter."

Time's embrace of Web 2.0 users was a rare nod of affirmation from the old guard to the new order. More than almost any other profession, the revolution in communication technology is transforming the field of journalism by turning it on its head and disrupting the roles the media have played in our society for decades.

The shake-up has engendered hours of professional introspection and debate. What will become of traditional journalism, many are asking, if all it takes to broadcast an opinion or a juicy piece of news to an audience of thousands is a computer and an Internet hookup? Mainstream newspapers are already losing readership and ad revenue to Web sites and blogs. If newspapers can't afford to pay reporters to track down secrets of note, then who will?

To get a sense of this quiet but massive revolution, the blog indexer Technorati reported last fall that it was tracking more than 57 million blogs worldwide, with about 1.3 million posts per day. About 12 million Americans have a blog, and 57 million Americans read blogs, according to the Pew Internet and American Life project. Although the majority of blogs air personal or non-news material, many are dedicated to observing, commenting on, or even adding to the news, and most major media outlets now have their own blogs, as well. Not only do citizen blogs allow secrets to be disseminated with breathtaking immediacy, those secrets can now be added to by unnamed sources that never need cross a reporters' path.

I appreciate that this new wave will have an impact; I'm hopeful about but not yet comfortable with what it may be. I place myself with those who are wondering how the proliferation of self-proclaimed journalists will handle the dicey territory of secret gathering, among other issues. I wonder how the newbie journalists will know to filter substantive secrets--those that raise credible issues the public needs to know--from those that are the product of gossip, rumor, or manipulation. During my twenty years as a journalist, I have spent untold hours trying to ascertain if a tip I've received is worth investigating. I have listened to complex tales of buried bones, rogue officials, and nefarious cover-ups. I have thumbed through piles of legal documents and shopping bags crammed with paper "evidence." I've quizzed public officials who've found my queries outlandish. The filtering process is tedious but necessary. The occasional secret the public deserves to know often exists in the same netherworld of hearsay and indignation as do false leads and paranoid accusations. Professional journalists know it is crucial to dig deep enough to distinguish between the two; bloggers may not know how to do this, or even see that as their role.

At the same time, I can see where the process of tracking down secrets can benefit from a massive cybersea of possible sources. Bloggers in general are less apt to feel constrained by mainstream journalistic caution, and the anonymity of the web allows people to reveal information without necessarily having to enter into a pact with a reporter that can then be challenged by the government or law enforcement.

Several major news organizations, for instance, knew for months about Florida Representative Mark Foley's questionable 2004 e-mails to an underage congressional aide, according to Poynter Institute Naughton Fellow Pat Walters. But all of them determined they didn't have enough documentation to go forward with the story. In September 2006, an unidentified blogger posted a copy of the e-mails on a site called Stop Sex Predators. A few days later, ABC reporter Brian Ross, acting on his own investigation, wrote a short article on the Foley e-mails and posted it on ABC's news blog, The Blotter. Former aides then posted additional, far more incriminating exchanges with Foley. Major media woke up, and another secret was blasted wide open. Within days, Foley resigned.

Some players in the media vanguard are experimenting with different types of investigative reporting approaches. One is "open source" or "horizontal" investigations, where web users are invited to contribute what they know about a secret that's in the process of being investigated. Another is establishing a nonprofit news-gathering outlet, which allows reporters to do, and sell, their work without the constraints of corporate gatekeeping or even the traditional newsroom.

The proliferation of blogs will likely change mainstream media's role in regard to secrets in other ways. Media historian Ponder suggests that in the future mainstream journalists may become interpreters of secrets that have been uncovered rather than secret gatherers. Others maintain that citizen journalists and bloggers will never replace professional journalists, because someone needs to track down and write the stories that bloggers then disseminate, comment upon, and analyze.

And how does the public, for whose edification these secrets are supposedly uncovered, fit into all this change? Very well, I would argue.

According to polls, over the last few decades the public has become more critical of the media, seeing the institution as increasingly more removed from the people it purports to serve, more concerned with profit than news-gathering, and at times falling down in its role as government watchdog. But with a reconfigured process that allows for more players, more feedback, and more participation from the public, the concept of the public trust is likely undergoing its own revolution.

Bloggers and podders have the ability to cultivate the public trust, in part, because they are the public. Someone finds a glaring error in a blog you've just posted and you'll know it, in minutes. And the responses you get won't be moderated through an editor's desk--you'll get the full-frontal attack. These responders aren't banging at an institutional gate begging to be allowed three column inches of ink--they're contacting a peer and challenging a fact or a conclusion. The debate is immediate and public. The term "public trust" is a bit ephemeral, but this is exactly how it is gained or lost. A savvy, participatory public is more likely to create its own standards of trust and to find those outlets that meet them, whether they carry the name the New York Times or Boing Boing (the name of a popular blog).

Given the current speed of change in economics and technology, it is impossible to predict what the role of the press will look like in the far or even the near future. And it is likely there will be some media messiness before it all shakes out. The tension between the government and the press regarding secrets won't evaporate, but the playing ground will shift--is shifting--dramatically. It will fall to the courts or Congress to create new guidelines for determining who is a journalist, what sort of information-gathering or broadcasting gets protected, and what doesn't.

Some things, however, won't change. Concentrations of financial, government, and institutional power will always breed secrets. And as long as there are secrets there will, thankfully, be people committed to exposing them, whether it be via a retooled mainstream media, bloggers, podders, or a system we can't yet imagine.

Published in the Spring/Summer 2007 issue of Oregon Humanities.

© 2007 Oregon Council for the Humanities