The High Cost of Protecting Confidential Sources

We’ve covered confidential source exposures on our blog in the past, but a recent case brings a particularly difficult aspect of confidential source protection to light. The case involves a USA Today reporter and her 2003 story regarding the letters poisoned with anthrax that were sent after 9/11 and resulted in 5 deaths. A federal judge has ordered the reporter to reveal her sources for that story to aid in a case against the government. The case was brought by one of the individuals named as a potential suspect in the anthrax letters investigation. The plaintiff was never charged with a crime but feels his privacy has been violated by the Justice Department’s and FBI’s disclosure of confidential info about him to reporters.

While reporters may be accustomed to the potential for incarceration for refusing to reveal an anonymous source, this particular judge has taken a different approach by ordering the reporter to be fined $500 a day for a week, then $1,000 a day for a week and then $5000 a day for a week unless she reveals her sources. Further, the judge has ordered that the reporter must personally pay the fines, without aid from the newspaper or any other party. While confidential source protection for refusal to reveal a source is offered by a variety of media insurance markets, it’s unlikely that such an insurance policy would be helpful in this scenario. This is true for a couple of reasons: 1) the coverage doesn’t generally extend to fines, penalties or contempt of court citations and 2) the judge’s order that the reporter must pay the fines personally would probably preclude the insurance carrier from paying out, for fear of putting themselves in jeopardy for defying the judge’s order.

Fortunately for the reporter, the fines were put on hold as a stay was issued in the case and the reporter has appealed the decision. Also, a federal shield law to better protect reporters is under consideration but if enacted, it is unlikely to be enacted soon enough to be of use for this particular case.