Q: What is “off the record” and has it ever been breached?

Protect your sources. It’s the cardinal rule of journalism, and reporters hold this promise of confidentiality in the highest regard. Journalists will protect a source’s identity or withhold details of their conversations when revealing these truths would be morally objectionable or life-threatening to the source. Yet, some journalists have broken this sacred covenant when their own security or safety is on the line.

“Off the record,” that well-known journalism phrase, is an agreement between a reporter and source that any information a source shares cannot be used for publication. Sources in high-profile professions or those with access to classified documents may agree to talk to a reporter off the record or on background when they know that their identities are protected. That’s where the concept of “reporter’s privilege,” or the right to refuse to disclose their sources and information in court, comes into play. In recent decades, this privilege has extended to so-called “shield laws” that legally protect journalists from being forced to share confidential or unpublished information. As of 2021, these shield laws exist in 40 states, according to the Reporters Committee for Freedom of the Press.  

A look at Shield Laws across the United States.

Yet, these aren’t foolproof protections. In rare situations, reporters may be subpoenaed for their interview notes or forced to testify and reveal their sources. This often happens when the U.S. government or another powerful institution investigates whistleblowers and pressures journalists to disclose that information. Journalists may even be fined or jailed for refusing to comply, especially when national security is concerned. Sometimes these threats are enough to turn a reporter against a source.

In 2018, national security journalist Marcy Wheeler announced she voluntarily revealed her source to the FBI during an investigation of former President Donald Trump’s connections to Russia and claims of 2016 election interference. When Wheeler intentionally “burned a source,” or disclosed their identity without their consent, it rocked the journalism community. But as Wheeler put it, she didn’t make the decision lightly. “I never in my life imagined I would share information with the FBI, especially not on someone I had a journalistic relationship with,” she wrote on her blog. She claimed the source was doing serious harm to the public, attempting to hack into her website and lying to her, among other infractions. Additionally, she feared if the FBI discovered her connection to the source on its own, the investigation would compromise the privacy of her readers.

Reality Winner / Michael Holahan / The Augusta Chronicle, via Associated Press

And in one spectacular blunder of a case, a confidential source was burned by mistake. In 2017, National Security Agency linguist Reality Winner mailed The Intercept a secret report detailing Russia’s election interference. The publication failed to protect Winner’s confidentiality several times by disclosing the postmark, carelessly traveling across state lines with the document, and sending an easily-identifiable copy of it to the NSA media affairs office, reports the New York Times. Winner was arrested by FBI agents three weeks later. In the fallout, she pled guilty and was sentenced to 63 months in federal prison.

While some journalists feel pressured to comply with legal threats, abide by their own moral compass, or act out of plain ignorance, others have held steadfast to protecting their sources.

In 2008, a federal judge held USA Today reporter Toni Locy in contempt of court for refusing to reveal a confidential source related to the 2001 anthrax attacks. She was ordered to pay fines of $500 a day for seven days, $1,000 a day for another seven days, and $5,000 a day for seven days if she refused to name her sources. 

In 2005, New York Times journalist Judith Miller spent 85 days in jail for refusing to testify against her sources during an investigation into the leak by White House officials of a CIA operative’s name. Only after Miller’s source “voluntarily and personally” released her from their off-the-record agreement did she agree to testify to a grand jury.

In 2004, a judge held WJAR reporter Jim Taricani in contempt of court for refusing to reveal his confidential source in an investigation about the leak of a sealed evidence video showing a city official accepting a bribe from an undercover FBI informant. Taricani spent six months in home confinement, and the television network paid $85,000 in fines.

It’s worth noting these last three cases occurred before strong shield law protections were in place and before a recent and noteworthy turning point in reporter’s privilege. In October 2022, the Department of Justice announced that it expressly prohibits the use of court orders, search warrants or subpoenas to obtain a journalist’s records or compel them to testify. (Life-threatening emergencies are exempt from this policy.) “For the first time, the new policy defines a lane of total protection for journalism,” wrote Bruce D. Brown and Gabe Rottman for CNN.

Still, this significant improvement only accounts for DOJ investigations, leaving plenty of wiggle room for the Department of Homeland Security, Customs and Border Protection, Immigration and Customs Enforcement, and the Secret Service, among other departments, to intimidate journalists and misuse their investigative authority, notes the Reporters Committee

Maintaining the trust of sources is a foundational marker of great journalism, and historically, journalists have always fought to protect the anonymity of their sources. The First Amendment demands they hold a mirror of truth to power. And for many journalists, their honor ensures those in power remain accountable for their actions regardless of the personal risks.