Thursday, July 21, 2005

Privileged Communication

Here’s a change-up: a bit of wonkosity.  With all the deep personal issues I’m sure to be getting into shortly, sharing all my innermost feelings and thoughts, I thought I’d just divulge a few ideas about confidentiality.  This is encouraged by my having watched Woodward and Bernstein on a TiVo’d Daily Show last night, and by an editorial in Time Magazine in which Joe Klein disagrees with his editor-in-chief for releasing Matt Cooper’s emails and notes pertaining to his sources for the Plame-out. 

This subject is one that resonates with me because I get to hear confidential information fairly regularly - stuff the rest of the world doesn’t care about at all (ooh!  big doings at the Alliance for Welfare Cooperation!  alert the media!) but that are, for the players involved, matters of the utmost importance.  Also, as a lawyer, I have some ethical obligations regarding confidentiality that, technically, bridge my professional and personal lives.  Also, I can’t keep my flipping mouth shut most of the time, so I have to be careful that I’m not sharing secrets out of school.  So that’s my background.

I got this notion from a radio interview I heard on NPR when I was in Florida, so I can’t take credit for it - nor can I assign blame very efficiently because I don’t remember who was being interviewed.  But no matter, I’ll take the heat if there is any, because I think the analysis is absolutely correct.  It goes like this:

The issue seems to be that some reporters got some sensitive information from highly placed sources under promises of confidentiality.  That communication represented a breach of national security, and possibly a violation of federal law, on the part of those imparting the information.  One reporter has now been incarcerated regarding her refusal to divulge her source for this information, another has been hauled before a grand jury for interrogation after a last-minute reprieve from jail leveraged his cooperation in breaching the confidentiality he’d promised his source.  We now have journalists - protected in more than 30 states by “shield” laws that allow them to honor source confidentiality, but not so protected in federal jurisdictions - anxiously looking over their shoulders and wondering if their own sources will still trust them enough to share news that the rest of us need to hear, and whether, upon publishing such news from confidential sources, they will face jail time for honoring their committment to keep quiet, or professional purgatory for succumbing to dire threats against their liberty. 

We count on these reporters to shed light on the murky darkness of back-corridor politics and shady dealmaking.  Their concern is a legitimate one - Judith Miller is in the same detention facility as Zacarias Moussaoui.  We’re equating her actions with those of a probable terrorist.  Meanwhile, who’s going to share a secret with Matt Cooper now?  These are difficult circumstances under which to ask a free press to thrive. 

Yet I agree with the detention and with the position of compelling divulgance of sources (if “divulgance” is even a word).  I don’t think Miller has the right to withhold this information, and the press is going to have to figure out a way to deal with some reasonable limitations on source confidentiality. 

Permit me to explain:

Let’s consider the other time-honored confidences from which the journalist-source privilege claims provenance: attorney-client, doctor-patient, confessor-penitent, spousal.  In all these cases, a social decision has been made that the underlying relationship is important and should be protected, even to the point that we cannot compel someone to divulge communication shared under these circumstances.  Why?  We want people to tell their doctors the truth, even if it implicates them in a wrongful act - they should be able to trust the doctor to help them, not turn them in.  Attorneys serve an important social function that would be impossible without the full trust of, and honesty from, their clients.  The relationship between spouses is considered so socially central that we expect them to share information and details that could be inculpatory; we want to honor those sacred bonds and encourage this honesty and closeness even to the point it eclipses the social interest in pursuing information about some past malfeasance. 

In all these cases, the recipient is entitled to protect the confidences of the person who shared the information, in order to protect the relationship in which the information was shared.  However, the privilege rests with the speaker, not the hearer of the information; furthermore, these are not absolute privileges, and can be vitiated if the information at issue falls outside of the defined relationship being protected.  When the information being shared is itself part of a criminal act, there is no privilege.  Thus, an attorney can be compelled to divulge the confidences of a client’s ongoing scheme to commit a crime - such communications are outside the scope of the attorney-client relationship and no privilege attaches to them.  A doctor can be compelled to share information about a patient that falls outside the doctor-patient relationship - if, for example, the patient describes how he has kidnapped someone who is locked in his basement.  The “Tarasoff” exception to the psychotherapist privilege in California compels a therapist to share information indicating that the patient poses an immediate and serious risk of injury to another person, because such information is valued even more highly than a safe, confidential therapeutic relationship.  And of course, a spouse can be forced to testify against the other spouse as to communications that constitute elements of a crime - planning, execution, or concealment.  Such acts have nothing to do with the ancient roles of husband and wife, and do not merit protection.  The social interest in preventing, investigating, and punishing crime is greater than the social interest in creating a “safe haven” for discussion of crimes with a trusted confidante. 

Here, reporters are claiming a privilege to themselves, not to share information about the sources of information - even when the source’s sharing of the underlying information itself was a criminal act.  Federal law prohibits anyone from divulging the identity of an undercover agent.  To have done so is a crime.  Reporters are saying that the social value of reporting the information being shared is paramont, and to protect it we must protect the confidence and confidentiality of those who break the law to make this information available for publication.  I disagree.  Reporters do not “own” this privilege - it attaches on behalf of the source.  It can be asserted by the reporter, but can be waived by the source.  If the source says, “I waive confidentiality,” the reporter should have no right to assert it and withhold the information when legally compelled to divulge it. 

This is especially true as concerns information that is itself a criminal act, like a breach of national security.  In such cases, waiver of privilege is not necessary - it should never have attached.  We have determined that national security is a more important interest than free speech, and in a balancing test between the two, is to be given greater (though not absolute) deference.  The need to know the source is greater than the reporter’s right to withhold it, even as our need to know of the planned murder of an innocent is greater than the attorney’s interest in keeping that client’s intended murder a secret.  The privilege protects a relationship, but when that relationship violates the social rules under which it was established, the privilege should not apply.  The negative impact on journalism is outweighed by the positive need to protect the information that has been wrongfully divulged. 

Was it a crime to publish the Pentagon papers in the 70s?  Maybe it was, as a violation of state confidentiality.  But the issue before us today is not the information itself, but the path by which it was obtained.  It’s a fine line, and a slippery slope - but I’m not comfortable granting a blanket privilege to reporters to withhold all information they receive just because it was received in confidence.  They serve an important role in society, but no more important than doctors, therapists, attorneys, and spouses. Those relationships have survived a conditional confidentiality privilege, and so will journalists.  Blankets smother. 

So, Joe Klein, I appreciate your outrage at your editor in chief for having caved in to prosecutorial zeal and divulging materials that Matt Cooper wanted to keep secret.  The problem was, they were materials that were by their very nature outside the reportorial ambit.  They were not journalism, they were evidence of a crime.  No one, not even reporters, has the right to withhold such evidence.  A free press is important to a free society, but the freedom of the society depends on more than just a free press.  And if Karl Rove can get away with breaking the law when he is talking to a journalist, he can get away with one hell of a lot of stuff.  I mean, more stuff.  So go get’em, tiger - just don’t get too carried away with yourself.

Tomorrow: mushy emotional stuff.  Monday: Korea.  Gadzooks.