Introduction

Investigative journalism cannot exist without public confidence in the journalists’ ability to protect sources, including sources which may be of interest to national security and law enforcement agencies.

Historically concerns about protection of sources have centred on the powers of courts to require journalists to name sources or to produce confidential data in the context of litigation. However, a key issue today relates to their ability to protect sources in the face of technological developments that now pose a substantial threat to anonymity. This chapter commences with a discussion of the technological contexts that frame the issues further explored in subsequent chapters, and considers their implications for investigative journalism. These developments are especially significant for sources of information who may be of interest to agencies in a context where there are many laws that attach criminal and other consequences to whistleblowing.

There then follows an analysis of the relevant regulatory frameworks. A key issue of current concern relates to the limited protection that is available for so- called metadata, coupled with legal requirements in some jurisdictions for telecommunications providers and internet service providers to retain metadata so that it can potentially be accessed by agencies.

The chapter concludes by considering the implication of these matters and the revelations by Edward Snowden concerning the range and scope of surveillance practices currently in use by national security agencies in the Five Eyes intelligence sharing group.

The Technological Threats

The technologies that pose threats to the protection of journalists’ sources fall into three groups: technologies that undermine the ability of individuals to remain anonymous in public places, technologies that make it possible to identify individuals’ physical locations and geographical movements and technologies that undermine the security of data stored or communicated electronically.

The first involves technologies that can be used to identify individuals with a high degree of accuracy, including via the algorithms used for face recognition which facilitate the automated operation of closed circuit television (CCTV) networks and other visual surveillance activities (Kuner et al. 2013, 1– 2). It is most aptly illustrated by face recognition applications that allow agencies, and smartphone users more generally, to photograph strangers and to instantly see that person's name and occupation, and even visit their social media profiles in real- time (Storm 2016).