Reporters and editors at national newspapers are increasingly relying on encrypted communications to protect themselves and their sources from potential federal breach investigations and subpoenas.
News organizations are assessing whether they have sufficient insurance to absorb a potential wave of defamation and other lawsuits from government officials, who have already indicated an intention to file such lawsuits. are.
Nonprofit investigative news organizations are also preparing for possible government investigations into issues such as whether hiring freelancers complies with labor regulations.
As President-elect Donald J. Trump returns to the White House, media outlets large and small are taking steps to prepare for potential legal and political attacks from the new administration and Trump's allies at home and abroad. are. government.
For nearly a decade, Trump has sought to demonize and outlaw the media. He attacked reporters as “enemies of the people.” He has repeatedly sued the press. During the first administration, the White House sometimes banned unsupported journalists from attending events.
But early signs are that his new administration may become even more hostile to the press. For example, Kash Patel, Trump's pick for FBI director, said before the election that the new Trump administration would “go after people in the media.” Federal Communications Commission chairman hopeful Brendan Carr recently raised the possibility of revoking the federal broadcasting licenses of television stations he deems biased against conservatives.
Despite Trump's propensity for exaggeration and sword-wielding, many reporters, editors and media lawyers take him seriously. As a result, Trump has been changing the way news is reported even before he returns to office.
“We're like people who hear a hurricane or tsunami is coming, but we don't know where it's going to make landfall or how strong it will be,” said George Freeman, executive director of the Media Law Resource Center. he said. , assisting news organizations with legal issues.
“It's all speculation at this point, but people are still locking their doors,” added Freeman, who served as assistant general counsel at The New York Times until 2012.
President Trump's press secretary did not respond to a request for comment.
One of the most pressing concerns, media lawyers say, is that the Trump administration will increase its use of subpoenas to probe journalists' confidential sources. Previous Democratic and Republican administrations have expended significant efforts to identify leakers, but under President Biden the Justice Department has adopted policies that make it harder to subpoena media companies. Mr. Trump's attorney general could reverse that policy with the stroke of a pen.
Lawyers and editors from a handful of news organizations, including the Times, met with Attorney General Merrick Garland at Justice Department headquarters last month to discuss the issue of government subpoenas, according to two people familiar with the off-the-record meetings. Garland acknowledged that the Biden administration investigated the breach without such a subpoena, but warned that news organizations should not expect such restraint from Trump's Justice Department. A Justice Department spokeswoman declined to comment.
In recent weeks, lawyers and editors at The Times, The Washington Post, The Wall Street Journal, The Associated Press, The New Yorker, ProPublica and other publications have taken steps to reduce the risk of exposing sources and confidential information. Reporters have been encouraged to take steps to protect themselves. Many people involved in the discussions said it was a subpoena.
Their recommendations include increasing reliance on encrypted messaging programs like Signal in discussions with sources and, in some cases, newsroom colleagues. said the people. Some major newsrooms recently advised reporters not to store sensitive documents and memos in the digital cloud because companies like Apple, Google, and Amazon could be subpoenaed by federal authorities. is calling out to Some suggest disposing of notes and other documents more quickly after publication of an article.
Smaller news organizations are also taking extra precautions.
Jersey Vindicator, an investigative website focused on New Jersey, recently began using Signal and the encrypted email program Protonmail as its preferred mode of communication to reduce the risk of subpoenas. Crystal Knapp, founder of Vindicator, said she purchased pay-per-minute SIM cards that can be easily discarded if the need arises.
Vindicator does not cover national politics and is unlikely to draw the ire of the Trump administration. But Knapp said she and her colleagues expect local officials to follow Trump's lead. “I'm definitely concerned about the trickle-down effect,” she says. “Rather than taking a wait-and-see approach, it's better to be as prepared as possible and hope for the best.”
Many news organizations are bracing for a surge in defamation and other lawsuits brought by Mr. Trump and some of his allies against media companies they don't like. Some news organizations, including the Associated Press, are evaluating the adequacy of libel insurance to deal with the flood of potential lawsuits.
“No one in the news organization should be optimistic about what the future legal landscape will be,” said Stephen Engelberg, editor-in-chief of the Pulitzer Prize-winning nonprofit news organization ProPublica. “You have to prepare and budget for potential litigation. Whether you win or not, litigation is expensive.”
After Trump's victory in November, Alex Yip, publisher of The Zylom, a science-based news site that writes about big energy companies, began having outside lawyers review articles before publication. His concern is that the targets of critical articles will harass the site with retaliatory lawsuits.
“We are already seeing an escalating trend of journalists being targeted by both Republican and Democratic local governments ahead of elections,” Yip wrote in an email. “But after the election, my personal judgment is that we can no longer ‘not do’ pre-publication review of these articles because the risk, especially from far-right bad actors, is too great. ”
Defamation lawsuits and leak investigations are traditional threats. But many lawyers are concerned that the Trump administration will pursue unconventional tactics to intimidate and punish news organizations.
David Bralow, general counsel for the investigative website The Intercept, said he was concerned that the Trump administration and conservative state attorneys general would try to weaponize vague regulations to punish media companies. spoke. To combat that risk, Intercept has created what it calls an internal audit program to ensure it is in full compliance with regulations governing things like the use of freelancers and payments from overseas. he said.
“There are a lot of regulatory laws that can be applied here,” Bralow said. The goal would be to “deprive news organizations of resources and create significant chill.” He said he plans to share The Intercept's audit program with smaller news organizations.
Some news organizations are discussing possible retaliation against journalists working in the United States on visas. Lawyers say some companies are checking whether previous years' tax returns are in order in preparation for an audit by the Internal Revenue Service.
In part anticipating an increase in legal threats, the Free Press Reporters Committee, which provides legal resources to journalists, recently hired a new attorney and another to help nonprofit newsrooms navigate tax laws. Bruce Brown said he plans to hire . Group executive officer.
Norine Dworkin, editor of VoxPopuli, a community news outlet in Orange County, Florida, moves files from the cloud to her local hard drive to reduce the risk of hacking by political actors.
“Hackers weren't on my radar until Trump was elected,” Dworkin said. “I became concerned about hackers in the context of politicians trying to find out what we were up to. My main concern is that local politicians are To follow our example and harass us.”
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