As we saw under the Obama administration, anyone working with confidential sources should assume the Department of Justice is going to aggressively pursue leaks, especially when that information is classified. It is paramount that journalists in particular keep in mind that there are no legal protections for sources who provide them classified information.
The prosecution of National Security Agency (NSA) contractor Reality Leigh Winner and the documents released by the Department of Justice about how they identified her as the alleged source provide a number of lessons and considerations for sources and journalists who seek to anonymously disclose information. In particular, sources who want to make an anonymous disclosure of information should avoid making contact via government phones, email, or computers. In this age it is difficult to transfer information electronically without leaving a footprint that could be tracked in a leak investigation. Journalists must also consider how their methods to verify information with others might inadvertently expose a source to retaliation or prosecution, and how posting primary documents—even after scanning—may still leave detectable information that will quickly identify a source.
Coming forward as a whistleblower is incredibly risky. For several years POGO has trained congressional investigators how to effectively work with whistleblowers to expose wrongdoing while shielding them from retaliation, and how to help protect whistleblowers who are retaliated against. We have also recently started training federal employees about their legal rights to provide information to Congress, Inspectors General, and in narrow circumstances, to journalists. Newsrooms should consider what additional steps they should take to ensure they will not expose sources who report wrongdoing to prosecution.
POGO has long advocated that there should be a public interest balancing test as a mitigating factor in any prosecution for the release of classified information. The balancing test would consider the need to protect classified information against any public benefit from the release of the information, such as increased transparent debate or change in policy.
It is too soon to speculate on how such a balancing test would apply in this case. But it is important to consider such a test given the lack of protections for federal contractors and employees who share classified information that the public might have a compelling need to know.
See also: How Whistleblowers Can Work with POGO