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s and communications 8 the cost of the digital era source protection threat is significant in terms of digital security tools training reversion to more labor intensive analogue practices and legal advice 8 such tactics may be insufficient if legal protections are weak anonymity is forbidden encryption is disallowed and sources themselves are unaware of the risks 8 the impact of these combined factors on the production and scope of investigative journalism based on confidential sources is significant 8 where source protection is compromised the impacts can include pre publication exposure of journalistic investigations which may trigger cover ups intimidation or destruction of information revelation of sources identities with legal or extra legal repercussions on them sources of information running dry self censorship by journalists and citizens more broadly 3 key issues edit source protection laws are at risk of being trumped by national security and anti terrorism legislation that increasingly broadens definitions of classified information and limits exceptions for journalistic acts the widespread use of mass and targeted surveillance of journalists and their sources undercuts legal source protection frameworks by intercepting journalistic communications expanding requirements for third party intermediaries to mandatory retain citizens data for increasingly lengthy periods of time further exposes journalistic communications with confidential sources debates about digital media actors entitlement to access source protection laws where they exist while being more prominent in western contexts are intensifying around the world 3 definition edit scholars 9 journalism organizations 10 and press freedom advocacy groups 11 have put a lot of effort in defining journalism in a way that it would allow the best possible protection of themselves and their sources many stakeholders have argued in favor of legal protections being defined in connection with acts of journalism rather than through the definition of the professional functions of a journalist some countries are broadening the legal definition of journalist to ensure adequate protection for citizen reporters working on and offline 3 this opens up debates about classifying journalists and even about licensing and registering those who do journalism debates that are particularly potent where there is a history of controls over press freedom 3 many legal definitions of journalist have been evaluated as overly narrow as they tend to emphasis official contractual ties to legacy media organizations may demand a substantial publication record and or require significant income to be derived from the practice of journalism 3 this leaves confidential sources relied upon by bloggers and citizen journalists largely unprotected because these producers of journalism are not recognized as proper journalists 3 such definitions also exclude the growing group of academic writers and journalism students lawyers human rights workers and others who produce journalism online including investigative journalism 3 this has bearing on a controversy in 2015 in which amnesty international objected to having been a subject of surveillance 12 in december 2013 the united nations general assembly adopted a resolution which outlined a broad definition of journalistic actors that acknowledged that journalism is continuously evolving to include inputs from media institutions private individuals and a range of organizations that seek receive and impart information and ideas of all kinds online as well as offline in the exercise of freedom of opinion and expression 13 in 2014 the intergovernmental council of unesco s international program for the development of communications ipdc welcomed the unesco director general s report on the safety of journalists and the danger of impunity which uses the term journalists to designate the range of journalists media workers and social media producers who generate a significant amount of public interest journalism 14 the arabic media internet network s dauoud kuttab does not want to limit entitlement to source protection to recognized journalists but to extend it to citizens as well 15 egyptian media studies professor rasha abdullah said that source protection needs to be accessible to a broad range of communications actors it should apply to anyone who has information to expose particularly in the age of digital media 16 for arab reporters for investigative journalism s arij rana sabbagh there is a difference between reporting the news writing an editorial and being an activist 17 united states media lawyer charles tobin is also in favor of a broad definition of journalism as a response to the rise of citizen journalists and bloggers 18 in 2013 the usa s society of professional journalists passed a unanimous motion that strongly rejects any attempts to define a journalist in any way other than as someone who commits acts of journalism 10 moving the framework to a protection of acts of journalism rather than limiting it to the work of professional journalists is a conceptual shift according to josh stearns in a 2013 report published by the advocacy group free press 11 issues edit the trumping effect of national security anti terrorism legislation edit in 2007 david banisar noted that a major recent concern is the adoption of new anti terrorism laws that allow for access to records and oblige assistance there are also problems in many countries with searches of newsrooms and with broadly defined state secrets acts which criminalize journalists who publish leaked information 19 the problem has grown in the intervening years as a parallel to digital development and occurs where it is unchecked by measures designed to preserve fundamental rights to freedom of expression and privacy as well as accountability and transparency in practice campbell considers that this leads to what can be identified as a trumping effect where national security and anti terrorism legislation effectively take precedence over legal and normative protections for confidential journalistic sources 20 the classification of information as being protected by national security or anti terrorism legislation has the effect of increasing the reluctance of sources to come forward 3 a 2008 council of europe coe report stated terrorism is often used as a talisman to justify stifling dissenting voices in the way that calling someone a communist or capitalist were used during the cold war 7 according to the coe report following the 2001 terrorist attacks many european countries adopted new laws or expanded the use of old laws to monitor communications 21 gillian phillips director of editorial legal services of the guardian has specifically referenced the implications of governments invoking national security and anti terrorism measures that interfere with protections for journalists and their sources calls for unlimited monitoring and use of modern surveillance technologies to access all citizens data directly challenge journalists rights to protect their confidential sources she said 22 a report by the guardian in 2015 based on files leaked by edward snowden highlighted the potential controversy in this area it stated that a united kingdom government communications headquarters gchq information security assessment had listed investigative journalists alongside terrorists and hackers in a threat hierarchy 23 the role of mass and targeted surveillance in undercutting legal protections edit fuchs 24 eubanks 25 and giroux 26 have warned that surveillance is a broader problem than the impingement of individual privacy andrejevic 2014 has argued that it represents a fundamental alteration to the power dynamics of society surveillance should be understood as referring to forms of monitoring deeply embedded in structural conditions of asymmetrical power relations that underwrite domination and exploitation 27 mass surveillance can be defined as the broad arbitrary monitoring of an entire or substantial fraction of a population 28 according to former united nations special rapporteur on the promotion and protection of the right to freedom of expression and opinion frank la rue states can achieve almost complete control of telecommunications and online communications by placing taps on the fiber optic cables through which the majority of digital communication information flows and applying word voice and speech recognition 29 a report of the united nations special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism ben emmerson has outlined that states can gain access to the telephone and email content of an effectively unlimited number of users and maintain an overview of internet activity associated with particular websites all of this is possible without any prior suspicion related to a specific individual or organization the communications of literally every internet user are potentially open for inspection by intelligence and law enforcement agencies in the states concerned 30 there is also concern about the extent of targeted surveillance according to emmerson s report targeted surveillance enables intelligence and law enforcement agencies to monitor the online activity of particular individuals to penetrate databases and cloud facilities and to capture the information stored on them 30 in 2013 the monk school of global affairs citizen lab research group at the university of toronto discovered command and control servers for finfisher software also known as finspy backdoors in a total of 25 countries including 14 countries in asia nine in europe and north america one in latin america and the caribbean and one in africa 31 this software is exclusively sold to governments and law enforcement agencies 32 a 2008 council of europe report detailed what it described as a worrying trend in the use of both authorized and unauthorized electronic surveillance to monitor journalists by governments and private parties to track their activities and identify their sources according to the report most such incidents are not related to countering terrorism but they are authorized under the broad powers of national laws or undertaken illegally in an attempt to identify the sources of journalistic information 7 these laws expand surveillance in a number of ways according to the coe study such as extending the range of crimes that interception is authorised for relaxing legal limitations on approving and conducting surveillance including allowing for warrantless interception in some cases authorizing the use of invasive techniques such as trojan horse and remote keystroke monitoring to be used increased demand for identification of users of telecommunications services 7 according to polish law academic jan podkowik 2014 surveillance undertaken without a journalist s consent should be considered as an act of interference with the protection granted by article 10 of the european convention on human rights he proposed in a 2014 paper that interference with journalistic confidentiality by means of secret surveillance should be recognized at least as equally onerous as searches of a home or a workplace it seems that in the digital era it is necessary to redefine the scope of the protection of journalistic privilege and to include in that scope all the data acquired in the process of communication preparation processing or gathering of information that would enable the identification of an informant podkowik wrote 33 the role of third party intermediaries and data retention edit compounding the impacts of surveillance on source protection and confidential source dependent journalism globally is the interception capture and long term storage of data by third party intermediaries if isps search engines telecommunication technologies and social media platforms for example can be compelled to produce electronic records stored for increasingly lengthy periods under mandatory data retention laws that identify journalists sources then legal protections that shield journalists from disclosing confidential sources may be undercut by backdoor access to the data 34 a 2014 united nations office of the high commissioner for human rights report the right to privacy in the digital age concludes that there is a pattern of increasing reliance of governments on private sector actors to retain data just in case it is needed for government purposes mandatory third party data retention a recurring feature of surveillance regimes in many states where governments require telephone companies and internet service providers to store metadata about their customers communications and location for subsequent law enforcement and intelligence agency access appears neither necessary nor proportionate 35 states are introducing mandatory data retention laws such laws require telecommunications and internet service providers to preserve communications data for inspection and analysis according to a report of the special rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism 30 in practice this means that data on individuals telecommunication and internet transactions are collected and stored even when no suspicion of crime has been raised 36 some of the data collected under these policies is known as metadata metadata is data that defines and describes other data for the international organization for standardization standard metadata is defined as data that defines and describes other data and processes 37 as the electronic frontier foundation s peter eckersley has put it metadata is information about what communications you send and receive who you talk to where you are when you talk to them the length of your conversations what kind of device you were using and potentially other information like the subject line of your emails 38 metadata may also include geolocation information advocates of long term metadata retention insist that there are no significant privacy or freedom of expression threats 39 even when journalists encrypt the content they may neglect the metadata meaning they still leave behind a digital trail when they communicate with their sources this data can easily identify a source and safeguards against its illegitimate use are frequently limited or non existent 40 changes in entitlement to protection edit in an era where citizens and other social communicators have the capacity to publish directly to their own audiences and those sharing information in the public interest are recognized as legitimate journalistic actors by the united nations the question for julie posetti is to know to whom source protection laws should be applied on the one hand broadening the legal definition of journalist to ensure adequate protection for citizen reporters working on and offline is desirable and case law is catching up gradually on this issue of redef...