Reporters and editors at national newspapers are increasing their reliance on encrypted communications to help shield themselves and their sources from potential federal leak investigations and subpoenas.
Multiple media organizations are evaluating whether they have enough insurance coverage to absorb a potential wave of libel and other litigation from officials who have already shown an inclination to file such suits.
And a nonprofit investigative journalism outlet is preparing for the possibility that the government will investigate issues like whether its use of freelancers complies with labor regulations.
With President-elect Donald J. Trump returning to the White House, media outlets large and small are taking steps to prepare for what they fear could be a legal and political onslaught against them from the new administration and Mr. Trump’s allies inside and outside the government.
For nearly a decade, Mr. Trump has demonized and tried to delegitimize the media. He has attacked reporters as “the enemy of the people.” He has repeatedly sued news organizations. In his first administration, the White House at times barred out-of-favor journalists from attending events.
But the early indications are that his new administration could be more hostile to the press. For example, Mr. Trump’s choice to run the F.B.I., Kash Patel, said before the election that a new Trump administration would “come after the people in the media.” Brendan Carr, the expected chairman of the Federal Communications Commission, recently raised the prospect of revoking federal broadcast licenses for television stations that he perceived as biased against conservatives.
While Mr. Trump is prone to hyperbole and saber-rattling, many reporters, editors and media lawyers are taking him seriously. As a result, even before Mr. Trump returns to power, he is altering how the press is operating.
“We’re like the people who hear that 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, the executive director of the Media Law Resource Center, which supports news outlets in legal matters.
“It’s a matter of guesswork right now, but people are still boarding up their houses,” added Mr. Freeman, who until 2012 was an assistant general counsel at The New York Times.
A Trump spokeswoman did not respond to a request for comment.
Among the most pressing concerns, media lawyers said, was that the Trump administration would increase the use of subpoenas to ferret out journalists’ confidential sources. While previous Democratic and Republican administrations have also gone to great lengths to identify leakers, the Justice Department adopted a policy under President Biden that makes it hard to subpoena media companies. Mr. Trump’s attorney general could undo that policy with the stroke of a pen.
Lawyers and editors at a handful of news outlets, including The Times, met last month at the Justice Department’s headquarters with Attorney General Merrick Garland to discuss the issue of the government subpoenas, according to two people familiar with the off-the-record meeting. Mr. Garland acknowledged that the Biden administration had investigated leaks without using such subpoenas, but he cautioned that news organizations should not expect such restraint from Mr. Trump’s Justice Department. A Justice Department spokesman 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 encouraged reporters to take steps to reduce the risks of sources or confidential information being exposed by subpoenas, according to numerous people who participated in the discussions.
Their recommendations include a greater reliance on encrypted messaging programs like Signal for discussions with sources and even, in some cases, newsroom colleagues, the people said. Some large newsrooms have recently urged reporters 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 have suggested disposing of notes and other documents more quickly after articles are published.
Smaller news outlets, too, are taking extra precautions.
The Jersey Vindicator, an investigative website covering New Jersey, recently began using Signal and Protonmail, an encrypted email program, as its preferred modes of communication to reduce the risk of being subpoenaed. The Vindicator’s founder, Krystal Knapp, said she bought a pay-per-minute SIM card that she could easily discard if the need arose.
The Vindicator does not cover national politics and seems unlikely to attract the ire of the Trump administration. But Ms. Knapp said she and her colleagues expected that local officials would follow Mr. Trump’s lead. “I definitely worry about a trickle-down effect,” she said. “It is better to be as prepared as possible and hope for the best rather than take a wait-and-see approach.”
Many news outlets are bracing for a surge in defamation and other lawsuits, which Mr. Trump and some of his allies have filed against media companies whose coverage they did not like. Some media organizations, including The Associated Press, have been evaluating the adequacy of their libel insurance to handle a possible deluge of litigation.
“Nobody at a news organization should be sanguine about what the legal climate is going to be like,” said Stephen Engelberg, the editor in chief of ProPublica, a Pulitzer Prize-winning nonprofit news organization. “You have to prepare for and budget for potential lawsuits — whether victorious or not, they will cost money.”
After Mr. Trump’s victory in November, Alex Ip, the publisher of The Xylom, a science-focused news site that writes about big energy companies, began having outside lawyers review articles before publication. His fear is that subjects of critical articles will harass the site with retaliatory litigation.
“We’ve already seen an escalating trend of journalists being targeted by both Republican and Democratic local administrations prior to the election,” Mr. Ip wrote in an email. “However, after the election, my personal judgment is that we cannot afford *not doing* prepublication review for these stories anymore, because the risk is too large, especially from far-right bad actors.”
Libel lawsuits and leak investigations are traditional threats. But many lawyers are concerned that the Trump administration will pursue less conventional tactics to intimidate or punish news organizations.
David Bralow, the general counsel at the investigative website The Intercept, said he worried that the Trump administration and conservative state attorneys general might try to weaponize obscure regulations to punish media companies. To counter that risk, he said he was creating what he called an internal audit program to ensure that The Intercept was fully complying with regulations governing things like the use of freelancers and payments from overseas.
“There’s a raft of regulatory statutes that can be employed here,” Mr. Bralow said. The goal would be to “take resources away from news organizations and create a significant chill.” He said he planned to share The Intercept’s audit program with smaller news organizations.
Some news outlets have discussed the possibility of reprisals against journalists working in the United States on visas. Others are checking that previous years’ tax returns are in order in case of an audit from the Internal Revenue Service, lawyers said.
Partly in anticipation of an increase in legal threats, the Reporters Committee for Freedom of the Press, which provides legal resources to journalists, recently brought on a new lawyer and plans to hire another to help nonprofit newsrooms navigate tax law, said Bruce Brown, the group’s executive director.
Norine Dworkin, the editor of VoxPopuli, a community news outlet in Orange County, Fla., is moving its files off the cloud and onto local hard drives to reduce the risk of being hacked by political actors.
“Hackers really weren’t even on my radar till 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 take their cue from Trump and harass us.”
