WikiLeaks makes news and shapes the public agenda. But the site, and any that follow in its footsteps, would be vulnerable if dragged into a U.S. federal court proceeding aimed at unmasking a source. Fifth Amendment protections aside, WikiLeaks wouldn’t qualify to claim the federal reporter’s privilege.

To make sense of that point, which I explain at greater length in this month’s Federal Communications Law Journal (.pdf), it helps to put the privilege in context. Journalists usually aren’t exempt from laws that apply to the general public. They can’t trespass to report a story, for example, and they can’t steal documents. However, people who act as journalists can get special treatment in at least one way — invoking the reporter’s privilege to refuse to testify about sources or unpublished information.

Although Congress has failed multiple times (as recently as last year) to codify the reporter’s privilege in a statute, nearly all of the federal appeals courts have come to recognize the privilege in relation to the First Amendment. In doing so, they’ve struggled to resolve the threshold issue in those cases: Who qualifies to claim the privilege?

The first and most important case to hit that issue head-on was In re Madden, decided in 1998 by the 3rd U.S. Circuit Court of Appeals. In a civil suit between two companies promoting professional wrestling, one of the people involved — a World Championship Wrestling commentator named Michael Madden — claimed the reporter’s privilege during a deposition. Madden refused to identify any of his sources of information for the commentaries he read on the WCW’s 900-number hotline.

The appeals court ruled that Madden didn’t qualify for the privilege, and laid out a three-part test that’s become the standard: Anyone claiming the privilege:

1. Must be engaged in investigative reporting.
2. Must be gathering news.
3. Must have had “the intent at the inception of the newsgathering process to disseminate the news to the public.”

The court didn’t fill in all of the blanks, but it did say the test “does not grant status [automatically] to any person with a manuscript, a web page or a film.” Other federal courts, before and after Madden, have said the same thing and made clear that the medium doesn’t determine whether someone can claim the privilege — a website is as valid a news vehicle as a newspaper.

Each prong in the Madden test is a hurdle for WikiLeaks to jump. Two of them wouldn’t be problems, because the site’s stated purpose is to disseminate information to the public, and its content is often newsworthy. The “investigative journalism” hurdle is the one that would trip up WikiLeaks.

Investigative journalism — according to journalism scholarship and a body of case law — involves more than dumping documents. It requires people to make an understandable story out of a mountain of information, to exercise editorial judgment, and to engage in analysis. Those activities are evident in the privilege cases around the country that followed Madden, and anyone engaged in those activities, journalist or not, can stake a claim to the privilege.

The courts should recognize a limited “watchdog privilege,” invocable by anyone who collects information about matters of public concern for dissemination to the public.

But WikiLeaks largely has passed on to the traditional news media the burden of adding value to the leaked documents, of contextualizing them, and of explaining their meaning and significance. Aside from a few stories it published (which really were press releases) and the Collateral Murder video (which WikiLeaks edited and supplemented with interviews and storytelling), the site hasn’t produced understandable, original stories out of the material it’s released.

As a result, the WikiLeaks staff wouldn’t qualify to claim the federal reporter’s privilege.

But is that how things should be? I avoided that question in my journal article. But it’s worth answering.

That’s because, even though WikiLeaks doesn’t perform investigative journalism per se, it has a place in the larger ecosystem of journalism. Newspapers, magazines and other outlets around the world have repeatedly, and to great effect, made use of WikiLeaks documents, most recently the files on Guantanamo Bay and the U.S. diplomatic cables.

A reporter’s privilege that excludes WikiLeaks while including the outlets that later use the leaked material is a bit irrational. It’s like an electrical wire that burns up to protect a fuse.

There are two ways the courts could carve out a privilege that would cabin WikiLeaks and similar sites. They could reconceptualize what it means to do journalism, or they could devise a privilege that encompasses a wider array of communication activities. Because I’m not prepared to say that journalism involves anything less than editorial judgment, analysis and telling stories, I like the second idea.

Specifically, the courts should recognize a limited “watchdog privilege,” invocable by anyone who collects information about matters of public concern for dissemination to the public. I say “limited” because the privilege’s backend would include all the garden-variety exceptions (e.g., testimony could be compelled where there is a direct, imminent threat to national security).

That approach is consistent with the general purpose of the reporter’s privilege: to protect the free flow of information (not the institutional press) by ensuring that the government can’t routinely conscript reporters as investigators. The worry is that the shadow of subpoenas discourages people from exchanging information.

The “watchdog privilege” is broad, sure, but not so broad that it’s unworkable. It excludes purely private communication, which wouldn’t contribute to the marketplace of ideas, and it requires that the content pertain to matters of public concern (e.g., information of broad interest about local, state, national, or world issues and events).

Although the privilege may put the courts in the dangerous position of deciding what’s of broad interest, libel law does the same thing. Plus, the privilege recognizes that the internet has created what Harvard law professor Yochai Benkler calls the “networked fourth estate.” It combines elements of the “traditional news media with those of the new,” based on decentralized information production.

Some of the players in that network engage in editorial judgment, analysis and telling stories; others do not. To the extent that they collect information about matters of public concern for dissemination to the public, they should qualify to claim the privilege. That includes WikiLeaks, however one feels about its actions in specific cases.

Photo: Julian Assange (Lily Mihalik/Wired.com)