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What To Do
By Harold J. Levy
Under Canadian law, journalists are compellable witnesses. Under Canadian law, obtaining a warrant to search a newsroom is no different than obtaining a warrant to search an abbatoir. And under Canadian law, journalists' telephones can be tapped the same as anyone else's.
In other words, little has improved for the protection of journalists' sources, notes, out-takes or other possibly confidential information since I dealt with the issue in this publication almost ten years ago.
The one significant change is that the Canadian Charter of rights and freedoms - with its constitutional protection from unreasonable search and seizure - was proclaimed in April 1982. But journalists should not be blinded by this one development from the continuing necessity to safeguard confidential documents.
Police officers remain free to go shopping from one justice of the peace to another for a search warrant until they get one. And even though application of the Charter may block introduction in a court of evidence they illegally seize, the police remain able to use the material in other nefarious ways.
In recent year's there's been a disturbing number of searches of television newsrooms in the province of Quebec by police officers seeking out-takes - the TV equivalent of print reporters' unused notes or quotes.
This is particularly disturbing because the Quebec courts have largely sided with the authorities. There's growing concern that police forces are increasingly trying, in effect, to use news camerapersons to gather police evidence.
Montreal CBC television journalist Julian Sher notes in an article published in the Winter 1988 Bulletin of the Centre for Investigative Journalism Bulletin that the Quebec raids in the past year have related to the Stanley Cup riots in Montreal Streets, a labour protest, the trashing of a post office by striking mailmen and an anti-war demonstration.
Private television stations have been visited by the police too. Last August, police raided Quatre Saisons, Montreal's newest french language TV station, in search of outs by a small demonstration of some young people. The station's news director, Jean Rivard, reluctantly handed over the tape in spite of his concern that the police interventions would impede the capacity of TV news to cover any kind of demonstration.
Rivard says his station now keeps outs for just a few hours. "I don't see a problem. If the police don't like it that's too bad. We don't have enough money to store our tapes like the CBC." CBC policy is to keep outs, with constraints of space and costs, for sound journalistic reasons.
Magazines continue to remain vulnerable to searches which may impede their capacity to publish. The classic case is the prosecution of the now defunct Body Politic for publishing an article titled, "Men Loving Boys Loving Men". In 1980, a police raid netted a copy of the magazine's computerized subscription list and other materials. To continue publishing, the magazine had to seek a court order to gain access to copy its own list, then reconstruct it. Ironically, the subscription materials were never used in evidence. In spite of aquittals on all charges, the police did not return the materials until eight years after they had been seized. Says former publisher Ken Popert: "When the documents were returned, we weren't sure whether we had received everything which had been seized because of the passage of so much time."
Clayton Ruby, the Body Politic's lawyer, says that if the police could effectively close the Body Politic, they can close any publication. Ruby points out that since the subscriber's list had no evidentiary value the seizure only served to terrorize the subscribers.
Ruby is skeptical of claims made by some publications that they can protect themselves by having subscription services conducted by computerized fulfillment houses which only provide access to the computerized lists upon entry of a secret code. Says Ruby: "When push comes to shove the subscription services are commercial organizations which will co-operate with the police. They say yessir, nosir."
Managers of several Toronto subscription services say they have never been raided by the police. If a search occurred, they uniformly agreed that before honouring a warrant they would contact the magazine, and seek advice from a lawyer. Some indicated that total security would be illusory because of the documents which must be on hand when lists are being revised on a regular basis.
Popert notes that vulnerable materials can be removed from the office and hidden. He cautions to make sure you remember where the materials have been hidden!
Another area of concern is the time-honoured practice of governments to launch police investigations aimed at discovering the source of leaked documents.
Globe and Mail reporter Peter Moon is always careful to shred the original of a leaked document so that the authorities cannot conduct forensic analysis which will connect the document to the date the copy was made and the particular copy machine on which it was duplicated. To ensure maximum safety, Moon may only retain a "copy" which he himself has copy-typed from the original. Where the document has already been used in a story, Moon is not concerned about handing over the copy-typed version. He acknowledged that he is careful to store valuable materials "elsewhere."
Newsrooms may be vulnerable to theft of documents because of the ready availability of photocopy machines. All a security agent or thief has to do is wait for an opportune moment, grab the document, duplicate it on a nearby photocopy machine, restore the original to its place, and fade away. The journalist may never find out that the document is, effectively, gone.
This risk has lead to the development of Nocopi paper, which, as a result of a secret technique, makes paper and /or ink reflect the light of a photocopy or a fax machine, making the copying of the document impossible. After Apple computer learned about the leak of a 160-page document detailing a possible version of its upcoming lap-top computer, the company began printing its top secret documents on the highly visible burgundy Nocopi paper. A word of caution. The type of Nocopi paper must be compatible with the particular photcopier which would likely be used.
Nocopi also markets a word guard/word guard scrambler, which can be used for high security documents. Nocopi claims it will distort or screen copy produced by most photo-copiers. Nocopi products may be obtained from Myncet Canada Security Technology, 50 Avenue Road, Toronto, M5R 2G2. Telephone 928-6888.
Increased use of personal computers by writers and journalists raises computer security concerns. Even where access to the system is protected by a code, the protection may well be illusory. Somewhere there is a master list of codes, and your top secret code is probably on it.
Those who insist on storing top secret documents in a computer should consider software that restricts access to particular files to those who know a secret code.
The WordPerfect word processing program, for instance, offers a "file manager" which offers password protection to a file. This feature is designed to lock a file so that only the user has access, on either the hard or floppy disc. But don't forget the password! Lots of people have. If you do, it will remain locked from everyone forever.
Stephan van Heerden, a computer security consultant who also happens to teach use of the WordPerfect program, cautions that the password may not offer protection against a sophisticated intruder such as an RCMP computer expert.
Van Heerden handcrafts electronic barriers to provide the higher degree of security which can be required. In addition to preventing or controlling access to confidential material, his systems can prevent that material from being erased, altered or otherwise sabotaged.
Van Heerden often advises his clients to set up directories, of which only they are aware, for the storage of sensitive information. Although the existence of the directory may be ascertainable, the electronic paths which must be taken to get to it will be known only to the user.
Dissembling the dissemblers is a challenging pursuit. Van Heerden notes that computer security is an ever evolving field. Computer hacks - and law enforcement computer experts - are constantly trying to keep one step ahead of the efforts to keep them out of forbidden territory. But for most writers and journalists, James Bond techniques are not required, he suggests.There are reasonably priced devises which will do the trick.
One computer "utility" can be purchased which will jumble files stored on a disc. An intruder can summon only a mass of hieroglyphics to the screen. It is called encrypting a file. It can be decrypted only by the user. The utility can also be used with fax transmissions.
Another utility recommended by van Heerden hides sub-directories from view when a directory of the drive is called. Also, certain DOS (disc operating system) commands can be invoked in creating directories that will deny the casual user access to those directories and all the files they contain.
The quest for unbeatable computer security should not become an unhealthy preoccupation. Most material can be protected by standard techniques. Users might be advised to store super-sensitive materials in more technically secure ways - such as deep within Aunt Emily's cookie tin.
"If something is highly confidential, keep it in your head," van Heerden suggests. Van Heerden can be reached at CCS Associates Inc., 261 Davenport Road, Toronto, Ont. M5R 1K3. Messages can be left at (416)964-1126.
The Globe's Jock Ferguson has developed a variety of techniques for protecting important information including the identities of sources. As he is often digging into political and corporate corruption, Ferguson doesn't worry just about the police. He is also concerned that one of the subjects of his investigation may try to find out, through hiring a private investigator, the extent of exposure he or she is facing.
Here are some of Ferguson's techniques:
* Use of code names for sources. Imaginative code names can deflect the overly inquisitive. They should be used in all records including notebooks, phone number books, and computer entries. But you must be careful not to include information which might identify the source.
* Keeping notebooks and phone books on your person. Notebooks and phone books can give a great deal away. They therefore exercise a magnetic attraction for police officers exercising search warrants. As the warrant does not in itself justify a search of the person, documents are safer in a jacket pocket than in a desk drawer.
* Take valuable files home. This will often work because it is easier to get a warrant to search a business address than a man's private castle. Besides the police don't often think of searching a reporter's residence. But a free-lancer working out of a residence might prefer to keep the documents in someone else's home.
* Throw many names into the notes. As some stories involve many sources, throwing a multitude of names - real or fictitious - may help put the chasers of the scent.
* Take the documents to a lawyer's office. This is an excellent technique where you are extremely nervous and there is a strong likelihood of a police raid. Arrange for the lawyer to open up a file in contemplation of possible seizure, thereby establishing the solicitor-client relationship which will permit the assertion of a legal privilege if the documents should happen to be seized. A Supreme Court of Canada decision has established firm rules for the conduct of raids on lawyers' offices. The police should be accompanied by a representative of the respective provincial law society to ensure the search is properly conducted and that only the files in question are seized. And the files in question would be placed in a sealed envelope so as not to be examined by the authorities until a justice determines in court whether they are in fact privileged.
* Be particularly protective of notes which may be evidence for a party in a libel case and the subject of examinations for discovery (a procedure in which parties to a civil action are permitted to question each other in order to pin down the relevant facts, and clarify issues, before trial.) If, however, it's clear the notes will not help the police - or any other party seeking them - there's no need to make an issue of withholding them. Show them and end the matter then and there. But any attempt to demand access to all your notes should be vigorously resisted.
Author John Sawatsky witnessed a mountie search first hand after publication of For Services Rendered. Sawatsky says that it is quite unlikely that a police search will be conducted while a work is in progress. But he says that after a book has been published it is necessary to have a precautionary system in place. When dealing with a great deal of material, the sensitive documentation which might reveal sources must be separated from the mass of clippings and public record documents. Sawatsky says that sensitive materials must be kept off the premises and suggests that a very careful examination be conducted to ensure that some sensitive materials are not inadvertently left where they may be found by police.
Sawatsky cautions that a search can be a very traumatic experience. If you can keep a cool head, it is advisable to ask to see the warrant in order to determine what specific objects the justice has permitted the police to seize. In his case, the mounties took a manuscript of the book, which clearly fell beyond the confines of the warrant. He says that it is helpful to show the authorities that you are acquainted with the basics of search and seizure law so that they do not try to get away with something they are not entitled to. Sawatsky suggests that during a search one should try to be polite while sending the message that if pushed too far one could turn nasty. This induces the authorities to avoid potential confrontation. Says Sawatsky: "The police will try to use their psychological tricks on you. Why not try a few on them?"
When the mounties came to visit Jo Ann Gosselin in 1980 she actually served them tea - and decaffeinated coffee. Gosselin had written five articles for Southam News based on a leaked memo relating to the fierce battle for Canada's lucrative fighter aircraft contract. The conversation with the two officers was cordial until she refused to produce the memo or identify her source. One of the officers indicated his displeasure by whipping out a walkie-talky, muttering a few words, and welcoming four or five of his colleagues who began to swarm through the house. Since her mother had taught her always be gracious to guests, Gosselin served them too and tried to look after their needs as they conducted the search. "This was my raid," says Gosselin proudly, noting that she asked her son to take photos of their newly extended family, so that the moment would be recorded for posterity.
(In fact, the mounties had packed up the memo without realizing what it was. Gosselin, after consulting with a lawyer, agreed to provide the mounties with the document and identified for them which one it was. The matter never came to trial.)
Veteran CBC reporter Gerry McAuliffe has also been on the receiving end of police searches. McAuliffe had reported that the Niagara Regional Police had performed illegal wiretaps. He was rewarded for his efforts by becoming the subject of investigation by the Ontario Provincial Police team which was supposed to be investigating the regional force.The police were interested in searching the records of his home and office telephone. As a result of this experience, McAuliffe has sworn never again to use his home telephone for those rare but crucial matters of the utmost sensitivity. His policy is to use public telephones for these calls and if possible never use the same pay phone twice. (McAuliffe also is concerned that the reason most journalists want to conceal their notes is that they would be thoroughly embarrassed if anyone saw them. He says the attention to the proper taking of notes has been noticeably lacking in Canadian journalism schools.)
Mick Lowe, author of the recently published Conspiracy of Brothers: A true story of Murder, Bikers and the Law, doesn't worry very much about seizure of his notes. "No one can read my writing," he says. But Lowe thinks that a confrontation with the authorities is inevitable. And when it comes he is worried that as a free-lancer he will neither be protected by law nor by any powerful news organization. But Lowe is certain that he will protect his sources to the fullest extent."After all," he says. "when the source talks to me he's talking to me as a journalist, and I'm talking to him as a source. I owe him the protection he requires."
Precautions to be taken during a raid:
* Ask to see the warrant. (If there is no warrant a lawful search cannot be conducted unless you give your consent.)
* Check the warrant for obvious defects. (But remember that if your arguments fall upon deaf or uninterested ears you cannot obstruct the police in the execution of their lawful duties).
* Say as little as possible.(There is no obligation to give the police information or to point out the location of any documents which they are seeking during the course of the search.)
* Protect sensitive material by asking the authorities to place such material in a sealed envelope until it can be examined by a justice--and duplicate whatever material you can before the officers leave so that you can carry on business and start preparing a legal challenge to the search.
* Co-operate with the authorities where you can but be prepared to draw the line where the act of co-operation could chill others from providing the news organization with information.
Finally, a poem:
When the mounties come to tea
Remember you can have the last laugh
So protect your sources vigorously
Harold Levy is a lawyer and member of the editorial board of The Toronto Star.
This article originally appeared in Sources 21, Summer