A district judge last week barred police from accessing electronic devices used by Las Vegas Review-Journal reporter Jeff German before his fatal stabbing in September – but only for a while.
The measure was a preliminary injunction against searching German’s cellphone, hard drive, and computers, but a further ruling expected this week could authorize a search by high-ranking officials from local government, instead of an independent third party, as requested by the Review-Journal.
Police say that access to German’s devices is necessary to fully understand the motivation for his killing. The Las Vegas Metropolitan Police Department referred CPJ to its most recent court filing in response to CPJ’s emailed request for comment.
But German’s colleagues and press freedom groups, including CPJ, want to protect the slain reporter’s confidential sources, cultivated over a decades-long career covering local politics and organized crime.
Here is CPJ’s briefing on the legal battle over Jeff German’s devices, why they need to be protected, and why it’s concerning that they are still in police custody.
Is there state and federal protection for the material on Jeff German’s electronics?
Yes. The Review Journal asserts that German used the devices for work. The federal Privacy Protection Act protects individuals from being compelled by law enforcement to turn over unpublished journalistic material. Nevada also has a state shield law, which is viewed by First Amendment experts as being the strongest in the country. The state’s law protects reporters from having to disclose unpublished and published materials, as well as information about confidential sources.
Then why isn’t German’s source material automatically protected?
This situation is, thankfully, uncommon. A total of 12 journalists and one media worker have been killed in the United States in relation to their work since CPJ began keeping records in 1992. This has left little room to establish legal precedent concerning journalistic material and source confidentiality after a reporter is killed, especially if law enforcement say that the material might be needed to prosecute the murder.
What is the Las Vegas Review-Journal requesting?
The newspaper is requesting that a third-party auditor, known as a taint team, search German’s electronic devices and pass only documents pertinent to the investigation to police. This would create a firewall to protect unreported source material and information about confidential sources.
How might the Metropolitan Police force access the devices? What if they are password protected?
Police should not have free access to a device that journalists use for work, even if they’re scrolling through it by hand. But digital forensic technology—now commonplace among law enforcement agencies in the United States—hugely increases the amount of information they can pull from a phone or computer, as well as their ability to store and query it whenever they need.
Some such technologies also circumvent encryption and password protection. Cellebrite, an Israeli company, offers law enforcement clients the ability to extract and search everything on a phone, even if it’s locked.
Though there are certain limits on the way information extracted from phones can be used in court, experts say a stronger legal framework is urgently needed to protect personal data stored on electronic devices – and that it must align with shield law protections for journalistic material.
What are the wider implications for what happens with Jeff German’s devices?
Allowing police into German’s devices would set a legal precedent allowing for reporters’ private source material to be accessed posthumously. It would also create a chilling effect: if a source’s anonymity is only guaranteed while the reporter is living, many might be less willing to reveal information that could get them in trouble, even in the public interest.
Separately, the case highlights the prevalence of digital forensic tools across the United States. The Electronic Frontier Foundation reported in 2021 that even small town police departments now have access to technologies that can strip vast amounts of data from cellphones and other devices.
Federal agencies are taking the same approach—with the same concerning implications for press freedom.The Washington Post reported last month that Customs and Border Protection agents have warrant-free access to vast databases of information obtained from phone searches at the border that the agency said it conducted for national security reasons.
CPJ has documented multiple cases of journalists singled out for searches by customs officials at U.S. borders and called in 2018 for warrants to be required when electronic searches are conducted at U.S. borders. The Post’s revelation that customs agents can store and access digital information obtained during some of those searches for up to 15 years—and the lack of transparency surrounding the program—raises serious questions for journalists who travel to and from the U.S., as well as those who interact with other investigative agencies equipped with such tools.
How can journalists protect their devices from being searched?
- Remove data that puts you or others at risk. Store anything you need to keep on an encrypted hard drive.
- Secure your device with a pin or password but be aware that authorities may be able to unlock it.
- If you’re expecting to encounter authorities with an interest in your work, power down your phone and computer to enable encryption, if your devices support it—iPhones and some others now do so as standard.
- See CPJ’s Digital Safety Kit for more information.