“An aggressive phone query from 60 Minutes can be more effective at nipping retaliation than 100 hours from a top lawyer billing $500 per hour.” Tom Devine & Tarek F. Maassarani, The Corporate Whistleblower’s Survival Guide: A Handbook for Committing the Truth (2011), p. 88
While speaking to a reporter can trigger certain source protections, the way in which you do it may cause legal issues. That is why it is important to discuss your case with a lawyer first to help mitigate any risks.
If you’re going to talk with a reporter anyway, make sure you do it the right way.”
Reporters have a different incentive structure than you. While you may both be interested in creating change, reporters operate on a principle of revealing information. Be sure that you both are in agreement about the terminology below and the implications of these definitions for what you share and how. Reporters should respect your timeline for disclosure, including an embargo. There are many high-quality reporters who work off of their reputation of keeping their sources safe, and have experience doing so.
Reporters’ Glossary
Background
You can talk to a reporter “on background,” meaning the reporter can use your information but cannot attribute it to you. Speaking on deep background means the reporter cannot publish the information you give them. They can use the information only for their general understanding of the issue. People use these terms differently, however, so the best practice is to make sure you and the journalist understand exactly the terms on which you are speaking to them.
Embargo
Agreement with a journalist or media outlet not to publish your information until an agreed-upon date and time. Always control the timeline of the journalists before agreeing to provide information. Tell the journalist that your information is “under embargo until this day at this time. You cannot publish before then.”
Exclusive
You could potentially offer some information or an interview to a single media outlet. This would be called an exclusive.
Media
The media can help maximize the impact, but be thoughtful when talking to the media. If possible, speak with a lawyer before doing so. Before you talk to a journalist, come to a specific agreement about the terms on which you are speaking to them, whether you will remain anonymous, and how you will be described in the article. Understand how far the journalist and their employer will go to keep your identity confidential. Will they give over your name on receipt a subpoena? Will they fight subpoenas seeking your identity in court?
On the record
The reporter can use and print what you are saying and attribute it to you. The reporter can quote what you say to them. Reporters always assume that what you say to them is ON THE RECORD. You need to make it very clear — sentence by sentence — whether your conversation is on the record or not. Make the reporter repeat and acknowledge your instructions. If possible, get your agreement in writing (email is fine).
Off the record
This means different things to different people. Some people use this to mean the reporter cannot use this information in their reporting. Others use it to mean the reporter can use it but cannot attribute it to the source.
ProtonMail
An encrypted, free email service. Use it.
Recording
In most places, the law allows reporters and others to record conversations without consent, so if you do not want them to record you, make that a condition of speaking with them. If you are gathering evidence of wrongdoing, you may need consent to record a conversation; recording without permission could be a crime or civil offense in certain states. Fifteen states always or in certain circumstances require the consent of everyone involved in a conversation before it can be recorded: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Oregon, Pennsylvania, Vermont, and Washington. This issue is complex; ideally you should consult a lawyer before recording anyone without their consent.
Signal messenger app
Signal is an end-to-end encrypted messaging service. You can also set messages to disappear after a few minutes, days, or weeks. You can make calls and create groups. It is useful when communicating with anyone about your efforts to reveal wrongdoing.
Source protection
Some media companies will go to great lengths to protect the identity of a confidential source. They will file motions in court to fight a subpoena, they will pay fines instead of giving up the name, and their journalists may even be willing to go to jail rather than reveal a source upon court order. Other media companies do not have the institutional need or the resources to offer this sort of protection. If you plan to give information to the media confidentially, first ask what they will agree to do to protect your anonymity.
Checklist
- Nothing is off the record unless the journalist confirms it is off the record.
- When picking a journalist to work with, look at their record of stories, including how fair you think they are and whether they have any industry loyalties.
- You have the information journalists want, so you can ask them to agree not to release the story until a certain date or not include certain information as a condition. If you have good information, they can wait and agree to your conditions.
- Journalists have to run your information by the company for verification and comment. If they do this too soon it can be dangerous and disrupt your timeline. Ask the journalist when they will send questions to your company and to alert you when they do so. They generally do so at the end of their own investigation.
- Be clear regarding the detailed information the journalist can publish, can use to ask questions of colleagues and/or to your company, can use to describe you in the article (e.g., “According to a former employee”), etc. Repeat the detailed information regularly to the journalist to make sure the story published does not implicitly reveal the whistleblower’s identity. Good and trustworthy journalists respect such commitment.
- Be mindful before mentioning other people’s names to a journalist as the journalist could speak to them and reveal your identity. Even if journalists don’t mention your name, they could ask questions about information only you know, thus allowing others to infer your identity. Ensure they know which kinds of questions or calls they make to other people might give away your identity. This will help them protect you. Other people who are contacted by the journalist may also get upset and seek their own counsel or tell their own version of events to the journalist.
- Bear in mind that having the journalist speak to others can have positive effects, too. If the journalist talks to colleagues or other people from your company/sector, it will help them understand the larger picture, find corroborating details and help camouflage your own contact with the journalist and the information you provided. Other people the journalist contacts through LinkedIn, email, Signal, Twitter, etc., could give such information to the journalist.
- Make sure you are communicating in a secure way, such as Signal. You can find a list of different media outlets’ SecureDrop contacts here.
- There will be at least one journalist who takes the side of the tech company. You need to make it clear it’s about the information and not you. Don’t be defensive.
There is a coalition of public-interest journalism organizations working with The Signals Network to facilitate whistleblowers’ revelations of wrongdoing and ensure their stories are told effectively. They have a global audience of more than 150 million people in six languages (Danish, English, French, German, Italian, and Spanish). You can find more information about working with them here.
