What duty of care do media organisations have when dealing with classified information?

Great Debates
1

There’s an ongoing debate in the other thread debating the arrest of David Miranda whilst transiting through Heathrow Airport. But there’s also a different debate that I think is also relevant here, regarding the behaviour of the Guardian newspaper, and how it has handled information passed to it.

First, for the purposes of the thread, let’s assume that newspaper have a legitimate role in handling classified information passed to them by whistleblowers as long as they are acting in the public interest, bringing stories of illegal or morally dubious acts by the State to light.

However, suppose a newspaper has been given a data dump, consisting of gigabytes of undifferentiated classified data, some relevant to stories in the public interest, some likely prejudicial to legitimate operations by the security services (e.g. the names of informants in Iran or North Korea, details of other operations, details of employees of the service, and so on). Does a newspaper receiving this information have any duty of care in:

[ul]
[li]Limiting release of information from the trove to the public. For example, could they (legally, morally, whatever) freely print the names of informants and their details derived from the trove? Must what is released be only strictly related to journalism deemed to be in the public interest?[/li][li]Limiting the dissemination of the trove. Do the editors of the newspaper in question have any (legal, moral, whatever) obligation to limit the number of eyes in the newspaper that see the raw, undifferentiated data? For example, would it be (legally, morally, whatever) permissible to disclose to the newspaper’s cartoonist or janitor the contents of the raw data? Junior staff writers? The partners of bloggers working for the paper? Does the editor have a (legal, moral, whatever) obligation to shield the data from e.g. Chinese, Russian or Iranian nationals working at the paper when the data could reference informants working for the state in those countries?[/li][li]Does the newspaper have a (legal, moral, whatever) obligation to prevent the trove from potentially falling into the hands of the security services of other, perhaps less friendly countries? Should where the trove is placed physically be limited? Should it be flown on the person of an individual working (perhaps not directly) for the newspaper into other less friendly countries?[/li][/ul]

What are the legal or moral limits on the behaviour of newspapers when dealing with classified information in this way?

2

I don’t know about the legal side of things but on the moral side I think there are probably two separate issues:

  1. “Universal” moral concerns: broadly, that careless release of the info could lead to the harm, or death, of others (e.g. sources in foreign dicatorships). Obviously that risk is very great in the case where the info actually contains names or other identifying information; it’s lesser but still present if the info could only have come from one or two sources and would thus point the finger at specific individuals. We wouldn’t expect journalists to be able to identify inculpatory info as a matter of course, so I’d say that risk was always present to some degree.
    We could also include in here that release of certain info may make it easier for terrorist groups to commit attacks or to avoid detection. As before, it may not always be easy for a journalist to know whether info falls into that category or not.

  2. “National” moral concerns: broadly, that release of the info might harm the national interest. This is a more difficult area both because the “national interest” is a fairly nebulous concept and also because it’s very arguable whether a (say) British newspaper has any greater responsibility towards the British national interest than it does towards the French or US interests. Towards the British public interest, yes, but that’s not necessarily the same thing and indeed may conflict - it’s easy to imagine scenarios where a State can further its national interest by means that are in some way illegal or immoral, such that any revelations about this would e.g. damage alliances, imperil trade, disrupt negotiations etc. However, there could be some cases where the cost to national interest was sufficiently great to warrant a circumspect approach.

Generally speaking, I’d expect the press to favour the public interest of knowing about the State’s bad actions at the expense of the national interest. Indeed, I’d say they’d be a pretty pointless institution if they didn’t. However, I think the broader moral interests of not recklessly endangering people’s lives weigh far stronger and demand a great deal of care with respect to:

  1. Holding the info securely;
  2. Limiting access;
  3. Publishing relevant public interest stories.

The first two are particularly relevant in view of just how much sensitive data has been released precisely because people were careless about how it was held and who had access to it. I think that in using Miranda (or anyone) as a courier for the files, the Guardian were being very slapdash. Notwithstanding his exposure to other nations’ security apparatus, they also risked the data being lost or stolen. (Either by chance, or by ill-intentioned people with the wit to follow him to Poitras.)

I don’t have any hard and fast prescriptions about actual publishing. People will approach the calculus of risk vs reward differently; in the extreme case it may be that lives could be saved by publishing certain details that might risk the lives of others. Beyond that, there may be times when a small risk of harm to an individual could be justified by sufficiently major revelations of corruption or abuse.

3

It depends on one’s opinion of the government or the program in question.

4

Any media that printed the names of informants would immediately run out of informants.
In GB in the old days they used to have a system by which the editors would ask the authorities what to do, and the authorities would zoom a little fellow around with a D-Notice that prohibited any revelation the authorities didn’t want. It wasn’t binding but wise editors knuckled under.

But they reformed the system in 1993: they are now called DA-Notices.