Striving to Unmask Anonymous Sources   

Aggressive efforts by companies such as Philip Morris make it harder to protect sources' confidentiality.

There's more than one way to uncover the identity of a confidential source.

Recent cases demonstrate that those who want to discover anonymous sources are becoming more creative. Their techniques may make it harder to thwart them.

Ýonsider the libel lawsuit brought by Philip Morris against ABC. The tobacco company demanded $10 billion in damages after the network aired stories alleging that the firm manipulated the level of nicotine in cigarettes.

Philip Morris demanded to know the identity of the source, dubbed "Deep Cough." After ABC invoked its journalist's privilege, the tobacco company served subpoenas on several corporations that had provided services to the network's reporters, including American Express, United Airlines, Hertz, AT&T and Bell Atlantic. The subpoenas sought "transactional" records that the tobacco company believed would enable it to uncover the source by tracing the reporters' contacts and travel patterns.

ABC moved swiftly to block the subpoenas. It argued before a Virginia judge that subpoenas to third parties were equivalent to subpoenas served on journalists themselves, and should be subject to the same privilege that protects reporters from being forced to identify confidential sources.

Philip Morris relied in part on a 1978 decision from the federal appeals court in Washington, D.C., which concluded that neither the First nor Fourth Amendment protects journalists' telephone records from law enforcement officials. The court ruled that journalists who use the telephone to gather news assume the risk that their records – and their sources – will be revealed to third parties.

But the trial judge in the ABC case, T. J. Markow, rejected that reasoning in civil cases. "A reporter's promise to maintain confidentiality would be meaningless if his movements while investigating were open to scrutiny," he said. The judge concluded that in a libel case, the journalist's privilege should apply to records whether or not they are in the possession of reporters.

Unfortunately, the judge ruled that the privilege was not absolute. He initially found that Philip Morris – which must demonstrate that ABC broadcast its stories with actual malice in order to win its case – had ammunition enough to outweigh it.

ABC persuaded the judge to stay the order while it reargued the case – but it didn't move fast enough to stop American Express from turning over the records of three ABC News reporters, as well as those of other journalists with no connection to the libel case. American Express said that the mistake, which appeared to violate the company's own privacy policy, was "an isolated incident."

On July 11, Markow withdrew his initial order. He said Philip Morris had not yet proven that it could not get the information from another source, nor that its need for the information was "compelling."

Meanwhile, in the small town of Pekin, Illinois, law enforcement officials subpoenaed phone records from the office of Peoria Journal Star reporter Omar Sofradzija. They weren't investigating a crime, nor had they sued the newspaper. They were looking for records that they hoped would help the county government defend itself in a labor dispute, by revealing whether a demoted sheriff's deputy had violated the law by leaking confidential personnel information to the reporter.

When the journalist refused to tell them, the authorities went to Sprint/Centel of Illinois, which complied with the subpoenas without informing the newspaper that it was doing so. The Journal Star promptly sued in June to get its records back, and to prevent the county from using them in the arbitration proceeding. The lawsuit, which is pending, involves fundamental rights of privacy as well as confidentiality, the newspaper said.

Most reporters consider a promise of confidentiality to be sacred. Twila Decker, a reporter for the State newspaper in Columbia, South Carolina, faced jail for refusing to tell the judge in the Susan Smith murder case the name of the individual who leaked her a confidential psychiatric evaluation of the defendant. The state Supreme Court upheld that finding in early July. But the trial judge rescinded the contempt order when Decker swore that her source was not subject to the court's gag order.

Reporters like Decker can fight back. Third-party subpoenas are more insidious. Often journalists don't even know their records have been subpoenaed until long after they have been turned over. By then, the damage has been done.

So what's a reporter to do? It is worth asking companies about their policies on subpoenas for customers' records, and patronizing the ones who protect their privacy.

Either that, or get used to carrying around a pocketful of change for the pay telephone. l