Reporters and editors at national newspapers increasingly rely on encrypted communications to protect themselves and their sources from potential federal leak investigations and subpoenas.
More media organizations are evaluating whether they have enough insurance coverage to absorb a potential wave of defamation and other litigation from officials who have already shown a penchant for filing such lawsuits.
And the non-profit investigative news outlet is bracing for the possibility that the government will investigate issues such as whether the use of freelance journalists complies with labor regulations.
With President-elect Donald J. Trump back in the White House, media outlets big and small are taking steps to prepare for what they fear could be a legal and political assault on them by the new administration and Mr. Trump’s allies inside and outside government.
For almost a decade Mr. Trump demonizes and tries to delegitimize the media. He attacked journalists as “enemies of the people”. He has sued newspaper companies several times. In his first administration, the White House occasionally banned out-of-favor reporters from events.
But early indications are that his new administration may be more hostile to the press. For example, Mr. Trump’s pick to lead the FBI, Kash Patel, said before the election that the new Trump administration would “come after the people in the media.” Brendan Carr, the expected chairman of the Federal Communications Commission, recently floated the possibility of revoking the federal broadcast licenses of television stations he felt were biased toward conservatives.
While Mr. Trump tends to hyperbole and rattle guns, many reporters, editors and media lawyers take him seriously. As a result, even before Mr. Trump returns to power, he is changing the way the media operates.
“We’re like people who hear a hurricane or tsunami is coming, but we don’t know where it’s going to land or how strong it’s going to be,” said George Freeman, executive director of the Media Law Resource Center. , which supports news outlets in legal matters.
“It’s just speculation at the moment, but people still board their houses,” added Mr. Freeman, who was an assistant general counsel at The New York Times until 2012.
A spokeswoman for Trump did not respond to a request for comment.
Among the most pressing concerns, media lawyers said, was that the Trump administration would increase its use of subpoenas to find confidential sources for journalists. While previous Democratic and Republican administrations have also gone to great lengths to identify whistleblowers, the Justice Department has adopted a policy under President Biden that makes it harder to subpoena media companies. Mr. Trump’s attorney general could overturn that policy with the stroke of a pen.
Lawyers and editors for several news outlets, including The Times, met last month at Justice Department headquarters with Attorney General Merrick Garland to discuss the issue of government subpoenas, according to two people familiar with the informal meeting. Mr. Garland acknowledged that the Biden administration had investigated the leaks without using such subpoenas, but warned that news outlets should not expect such restraint from Trump’s Justice Department. A spokesman for the Ministry of Justice declined to comment.
In recent weeks, lawyers and editors at The Times, The Washington Post, The Wall Street Journal, The Associated Press, The New Yorker, ProPublica and other publications have urged reporters to take steps to reduce the risks of disclosing sources or confidential subpoena information, according to many people who participated in the discussions.
Their recommendations include a greater reliance on encrypted messaging programs such as Signal for discussions with sources and even, in some cases, colleagues in the newsroom, the people said. Some major newsrooms have recently urged journalists not to store highly sensitive documents or notes in the digital cloud because companies like Apple, Google and Amazon could be subpoenaed by federal authorities. Others suggested faster disposal of notes and other documents after articles are published.
Smaller news outlets are also taking extra precautions.
The Jersey Vindicator, an investigative website covering New Jersey, recently began using Signal and Protonmail, an encrypted email program, as preferred methods of communication to reduce the risk of a subpoena. Vindicator founder Krystal Knapp said she bought a pay-per-minute SIM card that she could easily ditch if the need arose.
The Vindicator does not cover national politics and appears unlikely to draw the ire of the Trump administration. But Ms. Knapp said she and her colleagues expect local officials to follow Mr. Trump’s lead. “I’m definitely concerned about the trickle down effect,” she said. “It’s better to be as prepared as possible and hope for the best, rather than wait and see.”
Many news outlets are bracing for an increase in defamation and other lawsuits that Mr. Trump and some of his allies filed against media companies whose reporting they did not like. Some media organizations, including The Associated Press, are evaluating the adequacy of their defamation insurance to handle a possible flood of lawsuits.
“No one in a news organization should be optimistic about what the legal climate is going to be like,” said Stephen Engelberg, editor-in-chief of ProPublica, a Pulitzer Prize-winning nonprofit news organization. “You have to prepare and plan for potential lawsuits — whether you win or not, they’re going to cost money.”
After the victory Mr. Trump in November, Alex Ip, publisher of The Xyloma, a science-focused news site that writes about big energy companies, began asking outside lawyers to review articles before publication. He fears that the subjects of critical articles will harass the site with vindictive lawsuits.
“We have already seen an escalating trend of journalists being targeted by Republican and Democratic local governments before the election,” Mr. Ip wrote in an email. “However, after the election, my personal judgment is that we can no longer afford to *not do* pre-publication review for these stories, because the risk is too great, especially from far-right bad actors.”
Defamation lawsuits and leak investigations are traditional threats. But many lawyers worry that the Trump administration will pursue less conventional tactics to intimidate or punish news organizations.
David Bralow, general counsel at investigative website The Intercept, said he is concerned that the Trump administration and conservative attorneys general may try to weaponize the obscure regulations to punish media companies. To counter that risk, he said he is creating what he called an internal audit program to ensure the Intercept fully complies with regulations governing things like the use of freelancers and foreign payments.
“There’s a lot of regulation that can apply here,” Mr. Bralow said. The goal would be to “take away resources from news organizations and create a significant cooling.” He said he plans to share the Intercept’s auditing program with smaller news outlets.
Some news outlets have discussed the possibility of retaliation against journalists working in the United States with visas. Others check to see if tax returns from previous years are in order in case of an Internal Revenue Service audit, lawyers said.
Partly in anticipation of the rise in legal threats, the Reporters Committee for Freedom of the Press, which provides legal resources to journalists, recently brought on a new attorney and plans to hire another to help nonprofit newsrooms navigate the tax code, said Bruce Brown, the group’s executive director.
Norine Dworkin, editor of VoxPopuli, a newspaper in Orange County, Fla., moves her files from the cloud to local hard drives to reduce the risk of hacking by political actors.
“Hackers really weren’t even on my radar until Trump was elected,” Ms. Dworkin said. “I became concerned about hackers in the context of politicians trying to figure out what we might be working on. My main concern is that local politicians will emulate Trump and bully us.”
