2010-11-23 Gimme Shelter - WikiLeaks and the New Shield Laws

In concurrent developments, Australia and the United States have been drafting new federal legislation to ensure that journalists have legal rights to protect them from revealing the identities of their sources. It is precisely this kind of legislation that separates open democratic states from the tyrannical regimes that frequently top worst-offender lists on press freedom advocacy websites. Its importance cannot be understated. Yet many quite rightly point out that even in open societies where a 'free' press operates, journalists who refuse to disclose sources are faced with serious reprisals by the courts.

Prior to 2010, Australia's jurisprudence on shield laws was negligible. One infamous example was the case of Gerard McManus and Michael Harvey, reporters for Melbourne's Herald Sun, who were fined $7000 each and convicted of contempt of court after pleading guilty to not disclosing their government source on a story about war veteran entitlements.

In Western Australia since at least 2007, media reporters have been brought before secret hearings by the Corruption and Crime Commission to reveal their sources on various police investigations. They were faced with fines and / or jail sentences if they either disclosed what took place in these hearings, or if they refused to attend them.

Australia clearly needs this debate, and a sensible, holistic law needs to be introduced. The crux of this new Aussie bill, similar to the one passed by the U.S House of Representatives this year, is that, should a journalist be hauled into the dock, the judiciary will decide whether the disclosure is in the public interest.

Crucially, some members of Australian parliament have asked that bloggers be given the same protections as traditional reporters. In an essential article posted on November 8th, Stilgherrian points out that the very definition of the word 'journalist' is creating an interesting amount of consternation.

The Australian House of Representatives review of the current shield laws titled, "Whistleblower protection: a comprehensive scheme for the Commonwealth public sector" features a chapter on 'Third Parties' to explain the media's role in whistleblower activity. In section 8.22 of this chapter, the sole reference to WikiLeaks is made thus:

"If the Commonwealth does not legislate on disclosures to the media, it may be overtaken by technological advances enabling the anonymous disclosure of official information on the internet on sites such as WikiLeaks. The WikiLeaks website contains measures to protect the identities of its contributors and does not include any Australian filtering mechanism."

According to Australian Parliament, only Old Media shows any capability to 'filter' information provided by leaks (i.e by using editorial discretion), therefore is the favourable third party to attain further protection under new shield laws. The language used here is slightly vague but ostensibly exclusionary to online-native publishers, and especially WikiLeaks.

In the 21st century, a shield law is useless if it does not encompass online-native publishers. It is almost ironic that shield laws created to protect 'establishment' journalists are being re-evaluated so studiously in an era where Old Media's influence is on a steep decline.

Such progressive developments in press freedom in fact mask overtures to preserve the status quo of Old Media (read: the symbiotic interests it shares with government and their own corporate interests). If that sounds like conspiracy theorizing, consider the fact that an overwhelming amount of political reportage relies on the cozy relationship between journalists and their anonymous sources in public office. Emerging, independent online-native publishers are not considered pillars in this structure, according to lawmakers and Old Media hawks alike.

In the United States, Old Media and government seem to show a curious accord with their views on how the shield laws should be drafted and enacted. Shumer et al have been at pains to exclude WikiLeaks from any protection a shield law may offer.

Exceptions to the American shield law are being cited as necessary to combat terrorism and maintain national security interests. Yet history tells us that governments, time and time again, use the same pretexts to expand their scope of censorship, suppression of the media, and persecution of whistleblowers. Making an exception to shield laws effectively negates the protection they can and should offer to those who leak and publish information in the public interest.

Whistleblowers are motivated by the same patriotism as those who trumpet the need for stronger national security. WikiLeaks releases of classified military documents have brought these philosophical considerations to the fore. If Old Media has become so enamoured with its relationship with power, then a true whistleblower, risking everything, will be more inclined to approach a WikiLeaks rather than a Sydney Morning Herald or LA Times.

The melding of definitions for whistleblowers and traitors is not accidental. It is symptomatic of an overall push, which has become a signature of the last decade in democratic (especially Western) nations - give the appearance of openness, whilst suppressing information further.

Clearly, it is military leaks in particular which have caused the real sore elbows here. This has created the vogue of labelling truth-tellers the same way as traitors - those who leak government & military information to other nation-states for political gain and profit. Even those who are principally opposed to America's various military incursions sheepishly shrug their shoulders when it comes to military leaks - "well, it is a security issue...the military should expect the utmost security with its own data." Such apologias refract the issue through the current prism beamed to us via intelligence agencies - that whistleblowing is espionage. It is not.

In light of official debate, it is clearly a certainty that WikiLeaks and other online publishers will ultimately be ostracized in the Australian bill in the same way they have in U.S congress. Andrew Wilkie, a famous Australian Department of Defense whistleblower who spoke out against Australia's decision to send troops to Iraq in 2003, is now a member of Parliament. He has been one of the major proponents of the new shield laws.
However, considering his whistleblower background, Wilkie has publicly stated he finds WikiLeaks' publishing of classified military data as problematic, despite redactions made. Any potential for genuine recognition of online publishers as conduits for whistleblowers seems as distant as Pluto.

The real question is, will Old Media, hypothetically emboldened by increased protection, lift its game, or will it simply encourage more whistleblowers to head WikiLeaks' way?