In a very unfortunate bit of news, the Canadian Supreme Court on Friday ruled that there is no source protection for journalists in Canada, and a Vice Media reporter, Ben Makuch, is required to hand over his sources from an investigation he did with a Canadian man who claimed to have joined ISIS. Makuch had interviewed Farad Mohamed Shirdon back in 2015, and the Royal Canadian Mounted Police (RCMP) demanded access to all of his information. Vice and Makuch refused. In 2016, a lower court ruled against Vice and on appeal, the media organization lost again. Given those two loses, perhaps the eventual Supreme Court ruling isn’t that surprising, but it is still extremely disappointing and worrisome.
As Vice noted in an editorial posted after the ruling, this is a dark day for press freedom:
Lawyers for VICE Canada argued unsuccessfully through three levels of court that the RCMP is fishing for information and is effectively forcing a journalist to be an agent of the state. With this court decision hanging in the balance for years, Makuch has continued to produce fearless and important journalism on sensitive and often dangerous topics. Today’s decision will no doubt have a chilling effect on both sources, who may be reluctant to talk to reporters, and on journalists themselves, who could be less inclined to report on sensitive issues.
While our lawyers lost, we strongly believe that the journalism—which is already under attack across the globe—needs to be free from state intervention.
To some extent, we’ve dealt with this issue in the US as well, where some believe the 1st Amendment should already protect reporters and media orgs from giving up information on sources, but where the government still has gone to court — such as in the case of James Risen — to try to force journalists to reveal sources.
And while there have been some attempts at creating so-called “shield laws” against these sorts of things, unfortunately, nearly every attempt to do so would require the government to define who counts as a journalist, which would also be a huge 1st Amendment problem. (And, of course, over in Europe there’s an issue where Romania has been trying to use the GDPR to force a reporter to cough up sources).
I know that some people don’t think this is that big of a deal, but it is a huge deal if you want journalists to be free to investigate and report on things like government corruption and abuse. To do that, journalists rely on sources providing them information — and to get sources to provide you information, journalists frequently need to guarantee them anonymity for fairly obvious reasons. But when governments can force away that anonymity, it creates a huge mess. Sources will be much less willing to come forward, as they know that even if a journalist promises protection, they can’t guarantee it against a demand from the government. This will lead to significantly less whistleblowing, especially in important cases.
As Vice says:
It should go without saying: we are all better off when journalism operates freely, without interference from the state. Otherwise, leaders remain unchecked, massive corporations undermine elections, and the stories of the most vulnerable members of society remain untold. This might seem like hyperbole, but a quick glance at the recent headlines in any major publication should serve as proof that these things are happening.
It’s too bad that Canada has decided to flush that kind of openness away.
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The DOJ has decided it can safely threaten First Amendment protections, so long as it’s done in the pursuit of leakers. The Trump Administration has leaked like no other, prompting AG Jeff Sessions to triple-up on former president Obama’s war on whistleblowers. Omelets/eggs broken, I suppose, if the end goal is dialing back leaks to only the ones the administration approves of.
It’s cool to target journalists’ communications again. That’s the general mood of the DOJ, which slapped itself on the wrist during Eric Holder’s tenure for hoovering up AP journalists’ communications, only to reverse course when the desire to prosecute leakers surpassed its desire to not look like a thuggish force of government oppression.
The indictment of Senate Intelligence Committee advisor James Wolfe contained a lot of journalists’ communications and metadata obtained from several sources, including service providers these journalists used. This was disturbing enough, suggesting the new normal for leak investigations is targeting members of the press to work backwards to their anonymous sources.
But there’s even more shadiness going on than is observable from that single indictment. A self-appointed freedom fighter with the unbelievable last name of Rambo was apparently trying to suss out journalist Ali Watkins’ sources. (Watkins’ email and communications data were subpoenaed during the Wolfe investigation.) The first hints that something weird and disturbing was going on behind the scenes was published by The Washington Post. It detailed the apparently rogue (and illegal) actions of a government employee prior to the delivery of the Wolfe indictment.
The actions of a Customs and Border Protection agent who confronted a reporter covering national security issues about her confidential sources are being examined by the CBP’s Office of Professional Responsibility, the agency said in a statement Tuesday.
The agent, Jeffrey A. Rambo, contacted journalist Ali Watkins last June as the Trump administration was ramping up its investigations of unauthorized leaks to reporters, and he identified himself as a government agent.
Rambo met with Watkins at a restaurant in Washington after initially contacting her by email. A reporter taking such a meeting with a potential source would not be unusual.
But after he arrived, Rambo said the administration was eager to investigate journalists and learn the identity of their confidential sources to stanch leaks of classified information. He questioned Watkins broadly about her reporting and how she developed information, according to the people familiar with the incident, who spoke on the condition of anonymity to discuss a sensitive matter.
The “examination” is now an official investigation, the New York Times reports. More details about Rambo’s actions have surfaced, suggesting flagrant abuse of sensitive government databases for the purpose of tracking down Watkins and pressuring her to divulge her sources.
The agent, Jeffrey A. Rambo, who usually worked in the San Diego area, was temporarily assigned at the time to the National Targeting Center, a facility in Sterling, Va., operated by Customs and Border Protection that stores data on the travel of millions of Americans and foreigners. Such information is supposed to be used only under strict rules by immigration and law enforcement officials.
Now the Department of Homeland Security’s inspector general and investigators from the border agency are examining whether Mr. Rambo used the travel data improperly or illegally and whether anyone else was involved.
It doesn’t appear anyone directed Rambo to meet with Watkins and attempt to discover the identities of her sources. From the statements given to the New York Times, it appears Rambo was simply a self-starter bursting with misdirected gumption.
It remains unclear whether Mr. Rambo handled or heard about an official F.B.I. request to the center for Mr. Wolfe’s travel records, and, if so, whether that led to the discovery that Ms. Watkins was his traveling companion. According to Ms. Watkins’s accounts, Mr. Rambo spoke with enthusiasm to her about Mr. Trump’s crackdown on leaks, telling her that “we’re finally going to be able to drain the swamp,” raising the possibility that he had searched the database for her records on his own initiative.
It really doesn’t matter whether Rambo felt draining the swamp was his own personal mission or someone on the inside suggested he check the situation out. Either way, it’s an abuse of Rambo’s position and access. The DOJ started screwing the pooch with its demand for journalists’ records and communications and Rambo came along to botch the job and clumsily bury the canine after performing a hit-and-run on his own career. This is scary stuff and it’s not being helped by the anti-journalist attitude being fostered by the man at the top of the governmental food chain.
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