How Investigative Journalists Can Protect ThemselvesBy Yael Grauer January 15th, 2016
Investigative journalism can be tremendously effective in drawing attention to corruption and wrongdoing. The best investigative journalism has gotten people fired, led to criminal convictions, spurred policy changes, and empowered communities.
But since so much is at stake with investigative reporting, it comes with huge risks. Retaliation, suppression, and harassment are all inherent dangers for any investigative reporter.
Last March, for example, Huffington Post reporter Dana Liebelson was served a subpoena requesting copies, records, and documents, including notes from an interview she conducted with a Michigan prison inmate. Likewise, Making a Murderer filmmakers Moira Demos and Laura Ricciardi received a subpoena from the state of Wisconsin requesting access to their video footage, which Ricciardi told BuzzFeed was “an effort by the state to shut down our production.”
In early August, police ordered a BBC journalist to delete footage of a gunman who fatally shot two journalists. And in October 2014, New Zealand journalist Nicki Hager’s home was raided for ten hours; police confiscated computers, hard drives, CDs, phones, an iPod, a camera, and a large collection of papers belonging to his family.
Stories of confiscated documents or devices, harassment, and other forms of retaliation—including arrest—are not hard to come by. And freelance journalists are typically more vulnerable than staffers who may have access to the kind of legal and financial resources necessary to fight for a story.
Though it’s impossible to plan for every scenario that may arise, there are steps freelancers can take to protect themselves from a powerful person or entity that doesn’t take too kindly to their reporting.
To prepare for potential problems, think about the obstacles you could come across in your reporting. Whether the government wants to destroy footage before you go to press or an angry CEO convinces your editor to kill a post via legal threats and intimidation, you need to be aware of how the bear you’re poking will respond.
Harlo Holmes, a digital security trainer at Freedom of the Press Foundation, recommends making contingency plans. “You may want to keep encrypted backups of everything you have when you’re working on a story in a safe place,” she said. “We call that cold storage.”
Holmes also suggests taking special precautions at border crossings or even while traveling within the country.
“You don’t know when you’ll be subject to some sort of search or inquiry, and you don’t want to have any of those key assets on you in order for them to be seized,” she said. “You can use a healthy mixture of encryption and cloud-based backups so things are waiting for you when you get to your final destination.”
Two-factor authentication (or 2FA) is also critical for protecting valuable files. Setting up 2FA improves the security of your accounts, making it more difficult for hackers to gain access. The process typically involves an additional step after entering your password, such as typing in a code sent via text message to your cell phone or selecting a six-digit password from an Authenticator app.
“Two-factor authentication is really, really important if you are worried about being retaliated against, getting scooped, or someone trying to impersonate your account to figure out who your sources are,” Holmes added.
You can go to TwoFactorAuth.org to add 2FA to everything you use. Holmes particularly recommends using it for Slack, “which is one of those watering holes that nobody thinks about being the biggest treasure trove of secret and prized information for all in-groups everywhere.” Fortunately, Slack has instructions to easily enable the added protection; just make sure everyone else on your team is secured as well.
Finally, be aware that if a powerful person wants to kill your investigative story, shopping it around to different publications leaves you particularly vulnerable. In an effort to sell your piece, you may be tempted to reveal information that you’d be better off keeping to yourself until it’s accepted—especially if you’re asking for help on a large message board or Facebook group.
“There isn’t really anything you can do other than prepare for that inevitability,” Holmes said.
Thinking through this possibility can keep you from making rash decisions that could put yourself, or your sources, at risk.
Keep good records
Meticulous documentation can be tremendously useful for investigative reporters from a legal standpoint. For example, retaining copies of notes or audio recordings will be helpful if you ever have to face a defamation lawsuit.
“The difference between having a recording and not having a recording is the difference between a pretty easy win and he said/she said protracted litigation,” said attorney Aaron Williamson, a partner at Tor Ekeland, P.C. and an adjunct professor at NYU Law.
If you’re dealing with harassment or retaliation, documentation can be helpful in case you want to take legal action of your own in the future (such as getting a restraining order).
Maintaining records can be also useful for earning public support, especially in the aftermath of meaningful reporting. Brandon Smith, a freelancer who sued the city of Chicago for the release of video documenting the police shooting of Laquan McDonald, garnered public attention across the country—including a profile in The New York Times—when he wasn’t allowed to attend a press conference following the release of the video.
He has since documented his investigation thoroughly and publicly, both on his blog and in the news media, using his stats and other findings from Freedom of Information Act requests to back up his case. And now that the public has seen his evidence, he has the support to push back against intimidation tactics.
Lawyer up (when necessary)
Unfortunately, this area is where staff writers have a leg up on freelancers. Many of the largest publications have lawyers on staff who reporters can consult with free of charge in the case of harassment, getting subpoenas quashed, or dealing with legal threats.
As a freelancer, it’s possible to work with a publication or website’s attorney before an investigative piece goes live. But if that option is not available to you, Williamson believes it could be worth it to retain an attorney.
“Even if you’ve got all the facts right, if you’re covering something very unflattering about someone powerful then a defamation case is something you should always anticipate,” he said, pointing out that it can often be less expensive to hire an attorney early in the process rather than when it’s too late.
That’s true in response to legal threats as well, since it’s far easier for lawyers to determine whether they’re looking at an empty threat or something more serious—which will help you prevent problems later.
“Whether a claim would have merit is really difficult for someone to suss out without legal training,” Williamson said. “If you evaluate the situation wrong and think there’s nothing there and there is, and it goes one step further than a cease and desist… then it’s a lot more expensive to take that next step.”
And if you’d like to get a subpoena quashed, it’s much easier to hire a lawyer than try to appear pro se.
As Williamson explained: “It would be very difficult—probably impossible—for someone who doesn’t have experience with the law to gain a working understanding of the circumstances under which you’d be permitted to quash a subpoena in the timeline that you actually have to respond to it.”
Ask for help
Besides finding and retaining a lawyer on your own, there are also a number of organizations dedicated to protecting journalists.
“There are plenty of press freedom firms and organizations willing in step in and defend journalists detained, arrested, and prosecuted,” said Daryl Baginski of the Clandestine Reporters Working Group, an organization that trains investigative reporters.
In addition to legal clinics available for free, such as the Yale Media Freedom and Information Access Clinic, one resource I’ve used personally is the Reporters Committee for Freedom of the Press Legal Defense (RCFP) hotline. The hotline assists with tasks like answering basic questions and explain confusing legal procedures.
Access Now, an international digital rights organization that also has a 24/7 digital security helpline, provides technical advice and assistance for independent journalists, activists, and non-profits.
The Committee to Protect Journalists, meanwhile, promotes press freedom around the world through research and advocacy.
Investigative Reporters and Editors is a membership-based professional organization with resources and training to improve the quality of investigative reporting.
And the Freedom of the Press Foundation offers digital security information and resources; uses crowdfunding to aid journalists, such as Brandon Smith, who uncover police misconduct; as well as using crowdfunding to financially support encryption tools for journalists.
Sometimes it can feel like David and Goliath for freelancers who go up against dominant adversaries, but arming yourself with these skills, resources, and security practices could save you a lot of trouble later on—and ensure that your investigative work has the impact it ultimately deserves.
Read our Quick and Dirty Guide to Filing FOIA Requests for more on being an investigative journalist.Image by Photographee.eu