Straight to the Source: Shielding a Journalist's Metadata with Federal Legislation.

• Author: Dacy, Julia

TABLE OF CONTENTS I. Introduction 373 II. Background 376 A. The Importance of Metadata 376 1. Defining Metadata 376 2. Metadata and Journalism 377 3. How the Government Can Access Metadata Without a Reporter's Knowledge 378 B. Existing Protections for Journalists' Metadata 380 1. Administrative Policy 380 2. Data Collection from Third Parties 381 C. Past Attempts at a Federal Shield Law 383 1. A Summary of Historical Attempts at Passing Federal Shield Legislation 383 2. The PRESS ACT: A New Approach to the Federal Shield Law 384 III. Analysis 385 A. The Pitfalls of Existing Legal Protections 385 1. Increased Importance of Journalists' Metadata in a Post-9/11 World 385 2. Further Implications of Metadata 386 B. Advantages of Federal Legislation Over State Legislation 387 1. Inconsistency in Existing State Shield Law Protections 387 2. Interpretations of Conflicting State Laws in Federal Court 388 3. Compelling Disclosure by an Out-of-State Witness 389 C. Feasibility of Federal Legislation 390 1. Challenges with Defining a Journalist 390 2. Specific Metadata Protections Needed 392 3. Overcoming Political Hurdles to Passing a Federal Shield Law 394 IV. Conclusion 394 I. INTRODUCTION

The summer of 2020 was a busy time for journalists. A global pandemic raged. (1) Demands for racial justice and police reform following the deaths of Breonna Taylor and George Floyd sparked nationwide protests, and a contentious presidential election was underway. (2) As history unfolded and most Americans were locked down in their homes, journalists worked to bring crucial information to the electorate--often risking their own health and safety to do so. (3) While these events occurred on the world stage, a much more private storm was brewing at major news outlets--one that could undermine the free press this country relies on. On July 17, 2020, CNN's Executive Vice President and General Counsel, David Vigilante, received a secret order issued by a federal magistrate judge in the Eastern District of Virginia demanding that the network produce email headers from reporter Barbara Starr spanning a two-month period in 2017. (4) Vigilante was bound by a gag order that prevented him from publicly acknowledging the government's actions or discussing the situation with anyone besides the outside counsel retained by WarnerMedia. (5) The gag order explicitly prohibited Vigilante from informing Starr that the government was compelling the disclosure of her personal metadata. (6)

This was not an isolated incident. In the final weeks of the Trump Administration, the Department of Justice ("DOJ") engaged in a similar legal battle, this time ordering Google to hand over the personal data--including email logs--of four New York Times journalists who used Gmail accounts. (7) Any government collection of an individual's personal metadata without their knowledge raises serious privacy concerns. However, the implications of this practice on journalists are especially problematic because of how this data can be used in national security investigations. (8) In both of these situations, the information sought by the DOJ was part of a leak investigation, and the agency was attempting to uncover the identities of confidential sources. (9)

No official privilege for journalists exists within the context of the First Amendment or any federal statute. (10) However, nearly every state has enacted some kind of journalist shield law that protects reporters from being held in contempt for refusing to disclose the identities of their sources. (11) When the government seeks traditional materials, like interview notes, the reporter is aware of the subpoena and is required to turn them over personally. (12) The availability of metadata presents new concerns because, with access to it, prosecutors can piece together the identities of sources without ever bringing a journalist before a grand jury. (13) Rather than having to go through the hassle of compelling a journalist to reveal a source, investigators can determine this information on their own. (14) Most concerning is the fact that metadata can be collected without the reporter's knowledge, leaving the journalist helpless in terms of protecting the source. (15) As evidenced by the experiences of CNN and The New York Times, a journalist can be completely unaware of requests for their own metadata if a gag order is put in place. (16) These orders undermine the effectiveness of state shield laws and compromise the safety of sources and the integrity of investigations. (17) Federal legislation that includes protections against the compelled disclosure of a journalist's metadata is the best approach to handling the new issues presented when government agencies seek access to this modern information.

The idea of a federal shield law dates back to the 1972 Supreme Court case Branzburg v. Hayes. (18) In a 5-4 decision, the justices ruled that there is not an absolute reporter's privilege implied in the First Amendment that allows a journalist to refuse to testify about criminal acts she witnessed before a grand jury. (19) Justice Powell's concurring opinion, however, left open the possibility of federal protection for journalists from compelled disclosure of certain information. (20) Justice Powell explained that the need for testimony on criminal matters must be weighed against possible infringements on freedom of the press. (21) He stated, "[T]he courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection." (22) In the year following the Branzburg decision, Congress introduced 65 bills addressing the forced disclosure of information by news media. (23) Yet, almost fifty years have passed since Branzburg, and the country is still without a federal statute and uniform guidance on this issue. (24) In the decades since the decision, technology has dramatically changed the way reporters do their jobs. (25) When Washington Post reporter Bob Woodward wished to speak with Watergate source Mark Felt--also known as Deep Throat--he moved a red flag to the balcony of his apartment. (26) The two would then meet in person at an underground parking garage. (27) While this may seem like something out of Hollywood rather than the history books, these tactics helped conceal Felt's identity for over three decades. (28) These days, journalists rely on a number of modern methods, including email and messaging apps, to communicate with sources. (29) While the Committee to Protect Journalists suggests digital best practices for source protection, such as enabling two-factor authentication for devices and using encrypted messaging applications like WhatsApp, none of these methods are as foolproof as the Watergate-era meetups. (30) Shield legislation must address both a journalist's rights when physically present in front of a grand jury and in regards to the digital fingerprints they leave behind. The recent struggles between the government and news organizations provide a renewed sense of urgency for passing this kind of legislation and making sure that it addresses our twenty-first century concerns.

The government's ability to gather a journalist's metadata from a news organization or their Internet service provider threatens the sanctity of the relationship between the media and their confidential sources because law enforcement can use this information to uncover the identity of a source with relative ease. (31) This Note compares various legal frameworks for protecting sources and argues that federal legislation is necessary because alternatives, such as relying on DOJ policy or amending state shield laws to include data protections, would be inefficient and yield inconsistent results. The implications of this kind of data collection are even more problematic than with traditional materials because metadata is particularly useful in government investigations involving national security, which can be used as an excuse to forgo notice to the journalists involved. (32) As such, DOJ policy makes metadata relating to national security extremely vulnerable to collection without the affected reporter's knowledge.

This Note will begin by defining metadata and exploring the ways in which government agencies can access this information without a reporter's knowledge. The Background section will also provide a comparison of present and past administrative policies on the collection of such data from reporters directly and from the Internet service providers they contract with. This Note will analyze how this kind of metadata plays a role in national security investigations and why this makes it susceptible to government collection. It will also compare existing state shield laws to demonstrate the inconsistencies that exist across jurisdictions and make a case for a federal solution. Finally, this Note will outline the provisions to include in a federal shield law and how Congress can overcome the challenges that have previously prevented such legislation from being passed.

2. BACKGROUND

   1. The Importance of Metadata

      1. Defining Metadata

         Metadata is commonly described as data concerning data because it explains and helps locate the origins of an information source. (33) The difference between content information and metadata can be difficult to discern. (34) However, making this distinction clear is vital. (35) Metadata does not describe the content of a digital communication, such as the actual text of an email correspondence. (36) Rather, it includes information about the nature of that communication, including the sender and recipient. (37) This metadata is often embedded directly in a piece of digital information, such as an HTML document or image file, so that they can be updated together over time. (38)

         While content--like the body of an email--is clearly protected by the Fourth Amendment, many have argued that metadata is not. (39) The Electronic Communications Privacy Act...