Times Studies How to Shake Feds: Disposable Phones, Erasable Notes: "Act Like a Drug Dealer"

By Michael Calderone
The New York Observer

Monday 18 September 2006 Edition

Prosecutor Patrick Fitzgerald has taken his place among the spirits permanently haunting West 43rd Street. "The basic goal," New York Times reporter David Barstow said, "is to make it more difficult for a future Fitzgerald to follow the breadcrumbs of phone records and notes and expense slips from reporter to source."

Mr. Barstow, the Pulitzer- and Peabody-winning investigative reporter, was on the phone Sept. 12, shortly before The Times began this year's round of legal seminars for the staff.

The sessions, led by Times lawyers George Freeman and David McCraw, have traditionally offered a brush-up on privacy, sourcing and general newsgathering. But executive editor Bill Keller announced in a staff memo that the 2006 version would address "the persistent legal perils that confront us."

"The main worry these days is not libel, or proving that you actually quoted something accurately," said Craig Whitney, the paper's standards editor. "It is being subpoenaed."

The new legal curriculum dates back to August 2005, when reporter Judith Miller was sitting in the Alexandria Detention Center for refusing to identify a confidential source for Mr. Fitzgerald's grand jury. Mr. Barstow said that Mr. Keller asked him then "to write him a memo about how to protect sources."

Since that initial memo, Mr. Barstow has been working alongside Mr. Freeman and Mr. McCraw to give training sessions on how reporters can practice their craft while keeping the threat of prosecution in mind.

"With this crazy environment, with subpoenas and so on, there is this feeling that you have to act like a drug dealer or a Mafioso," Mr. Barstow said. "We don't have any reason to think right now that there aren't going to be more of these cases. So we should take precautions. It's just no longer an abstract threat."

The first of the new legal seminars was held at lunchtime on Sept. 12 in the paper's executive dining room. Afterward, Mr. McCraw declined to specify how many reporters had attended, but said that Mr. Keller and managing editor Jill Abramson had not been there.

Last month, in another case involving Ms. Miller and Mr. Fitzgerald, a New York appeals court ruled that the prosecutor could seize her and reporter Philip Shenon's phone records in connection with their reporting on Islamic charities. There have been rumblings about leak investigations into The Times' much-publicized stories about N.S.A. wiretapping and the monitoring of banking records.

And in a case not involving The Times, this month San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams appealed a decision that could put them behind bars for withholding confidential sources from their reporting on the BALCO sports-steroids case.

"I think people are more concerned because of the fallout from all the high-profile cases - BALCO, Judy Miller and others," Mr. McCraw said. "You have decisions that have cast doubt on reporters' rights to hold confidential sources. There is a lot of uncertainty."

Some of Mr. Barstow's recommendations have the sound of advice for reporting behind the Iron Curtain before the fall - recalling A.M. Rosenthal burning his notes as a reporter in Communist Poland.

Mr. Barstow said he suggests disposing of story drafts and cutting back on telephone and e-mail contact with sources - or using disposable cell phones for important calls. Reporters should be wary of meeting sources at their offices, Mr. Barstow said, so as to avoid sign-in sheets and security cameras.

In another point of conflict between bureaucracy and confidentiality, Mr. Barstow said he has recommended altering Times expense-sheet forms so that a reporter does not have to list the names of sources who have been taken out for lunch or dinner.

And what about the original paper trail that reporters create for themselves? The very first discussion question on Mr. Keller's memo promoting the seminar was "Should a reporter keep his notes?"

Last year's Miller-Fitzgerald showdown was dragged into overtime - even after Ms. Miller had collected a source waiver to discuss her conversations with Vice Presidential chief of staff I. Lewis "Scooter" Libby - by a dispute over the provenance of the words "Valerie Flame" in one of her notebooks.

"It has been the subject of a lot of legal discussions since Judy Miller," Mr. Whitney said. "Reporters have been encouraged not to keep their notes longer than necessary."

"We have had a lot of discussion about getting rid of notes some period of time after publication," Mr. Barstow said. He said it could prove unwise to leave notebooks "gathering dust for months and months."

And the modern trail is as likely to be digital. "Actually, it's gotten a lot easier to keep notes," said Times deputy national editor David Firestone. Reporters, he said, now can type on a computer during a phone call, or transfer files from a digital audio recording to their hard drives.

Whatever the format, The Times has no particular rule about preservation or destruction.

"There's no formal policy," Mr. Freeman said. "Each reporter is fully entitled to make decisions about which of his notes he keeps on his own. I just know that all of the various permutations - what the needs of a journalist might be - it would be very difficult to write a policy that would take into account those needs and not undercut the journalism."

E-mail, Mr. Barstow said, might be easier to tidy up than note-keeping. "There has been a conversation about changing our e-mail system so that e-mail is automatically deleted after 30 days unless you mark the e-mail for preservation," Mr. Barstow said.

At Time Inc., which was caught up in Mr. Fitzgerald's leak investigation by way of former Time reporter Matt Cooper, editor in chief John Huey sent out new reporting and writing guidelines in February, including a section about the keeping of electronic records.

"Reporters and editors should be extremely careful about how and where they store information that might identify an unnamed source," it read. "Most electronic records, including email, can be subpoenaed and retrieved in litigation."

"One lesson we've learned over the past year or two is that you don't have confidential information in e-mail unless it is sent to a lawyer, too," said Time Inc. managing editor Jim Kelly, who was managing editor of Time magazine when Mr. Cooper was there.

In his new position with Time Inc., Mr. Kelly said, he hopes to "soon start up a series of sessions about legal and ethical issues."

Mr. Kelly said he does not plan any blanket policy about eliminating notes or tape recordings. "How many times have we seen a sports figure, a celebrity or a politician that denies saying something?" Mr. Kelly said. "These things are a reporter's friend."

Mr. Barstow said he has taken part in six or seven training sessions already with various departments, including the metro desk.

"We still have to put out a newspaper," said Mr. Barstow. "We're on deadlines. You can't take this to the point of absurdity. It's like weatherproofing your house. It's about taking the steps that at least make it more difficult for prosecutors."

- Michael Calderone