[3] Technological developments and a change in operational methods of police and intelligence services are redefining the legal classification of privacy and journalistic privilege internationally.
[6] With rapid technological advancement, law enforcement and national security agencies have shifted from a process of detecting crimes already committed, to one of threat prevention in the post-September 11 environment.
Many legal definitions of 'journalist' have been evaluated as overly narrow, as they tend to emphasis official contractual ties to legacy media organizations, may demand a substantial publication record, and/or require significant income to be derived from the practice of journalism.
This has bearing on a controversy in 2015 in which Amnesty International objected to having been a subject of surveillance[11] In December 2013, the United Nations General Assembly adopted a resolution which outlined a broad definition of journalistic actors that acknowledged that: "...journalism is continuously evolving to include inputs from media institutions, private individuals and a range of organizations that seek, receive and impart information and ideas of all kinds, online as well as offline, in the exercise of freedom of opinion and expression".
[16] United States media lawyer Charles Tobin is also in favor of a broad definition of journalism as a response to the rise of citizen journalists and bloggers.
[18] The problem has grown in the intervening years, as a parallel to digital development, and occurs where it is unchecked by measures designed to preserve fundamental rights to freedom of expression and privacy, as well as accountability and transparency.
[3] A 2008 Council of Europe (CoE) report stated: "Terrorism is often used as a talisman to justify stifling dissenting voices in the way that calling someone a communist or capitalist were used during the Cold War".
[20] Gillian Phillips, Director of Editorial Legal Services of The Guardian has specifically referenced the implications of governments invoking national security and anti-terrorism measures that interfere with protections for journalists and their sources.
Calls for unlimited monitoring and use of modern surveillance technologies to access all citizens' data, directly challenge journalists' rights to protect their confidential sources, she said.
It stated that a United Kingdom Government Communications Headquarters (GCHQ) information security assessment had listed "investigative journalists" alongside terrorists and hackers in a threat hierarchy.
[28] A report of the United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, has outlined that States can gain access to the telephone and email content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.
[31] A 2008 Council of Europe report detailed what it described as a "worrying trend in the use of both authorized and unauthorized electronic surveillance to monitor journalists by governments and private parties to track their activities and identify their sources".
According to the report, most such incidents are not related to countering terrorism but they are authorized under the broad powers of national laws or undertaken illegally, in an attempt to identify the sources of journalistic information.
[32] Compounding the impacts of surveillance on source protection and confidential source-dependent journalism globally is the interception, capture and long term storage of data by third party intermediaries.
Mandatory third-party data retention—a recurring feature of surveillance regimes in many States, where Governments require telephone companies and internet service providers to store metadata about their customers' communications and location for subsequent law enforcement and intelligence agency access—appears neither necessary nor proportionate".
Such laws require telecommunications and Internet Service Providers to preserve communications data for inspection and analysis, according to a report of the Special Rapporteur on Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
[39] In an era where citizens and other social communicators have the capacity to publish directly to their own audiences, and those sharing information in the public interest are recognized as legitimate journalistic actors by the United Nations, the question, for Julie Posetti is to know to whom source protection laws should be applied.
On the one hand, broadening the legal definition of 'journalist' to ensure adequate protection for citizen reporters (working on and offline) is desirable, and case law is catching up gradually on this issue of redefinition.
[3] Female journalists working in the context of reporting conflict and organized crime are particularly vulnerable to physical attacks, including sexual assault, and harassment.
In some contexts, their physical mobility may be restricted due to overt threats to their safety, or as a result of cultural prohibitions on women's conduct in public, including meeting privately with male sources.
Women sources may face the same physical risks outlined above—especially if their journalistic contact is male and/or they experience cultural restrictions, or they are working in conflict zones.
[40][3] Women journalists need to be able to rely on secure digital communications to ensure that they are not at increased risk in conflict zones, or when working on dangerous stories, such as those about corruption and crime.
[18] In Europe, the European Court of Human Rights stated in the 1996 case of Goodwin v. United Kingdom that "[p]rotection of journalistic sources is one of the basic conditions for press freedom ...
"[68] The Court concluded that absent "an overriding requirement in the public interest", an order to disclose sources would violate the guarantee of free expression in Article 10[69] of the European Convention on Human Rights.
In the wake of Goodwin, the Council of Europe's Committee of Ministers issued a Recommendation to its member states on how to implement the protection of sources in their domestic legislation.
[85] In those political regions, policies such as mandatory registration of pre-paid SIM mobile phone cards and government access to CCTV make hacking tools and surveillance a lot easier.
In an article in January 2006, the two journalists alleged the existence of a leak in the Dutch secret services and quoted from what they claimed was an official dossier on Mink Kok, a notorious criminal.
Communications between reporters and sources have been used by the FBI and other law enforcement agencies as an avenue to information about specific individuals or groups related to pending criminal investigations.
The case, which was ultimately dismissed, involved attaining unedited footage of the encounter which part of was used in a documentary Linda Tracy made as for an undergraduate journalism class.
In Mexico, it is reported that the government there has spent $300 million during one year to surveil and gather information from the population with specific interest in journalists to get access to their texts, phone calls, and emails.