Given that at least some anonymous sourcing is here to stay, it's worth taking a few moments to consider how to do so while minimizing your legal risk.

"Spoke to Rove on double super secret background for about two mins before he went on vacation..."
- E-mail from Time reporter Matthew Cooper to his bureau chief

There has been much discussion in news media circles of late on the misuse (which typically boils down to "overuse") of unnamed sources. A number of news organizations, including most prominently the New York Times and the Washington Post have issued new policies in the past few years to rein in the use of anonymous sources. In fact, a poll conducted last year by the Associated Press and the AP Managing Editors Association found that editors at about one in four newspapers say they never allow the use of anonymous sources. Anecdotally, I would estimate that a similar number of student media organizations - and maybe even slightly more - also refrain from publishing articles with unnamed sources.

The movement to tighten the screws is a healthy one. Anonymous sources can lead to sloppy, inaccurate reporting, or at least the perception of it by readers. It can also lead to serious legal problems. Reporters have gone to jail in increasing numbers over the last few years to keep promises they have made to confidential sources in defiance of a court order. Moreover, it's pretty tough to defend a libel lawsuit where your primary source for an allegedly defamatory statement can't be called to the stand in your defense.

Still, hardliners aside, it seems pretty tough to argue that using unnamed sources has no place in journalism. From the Pentagon Papers to Watergate to the Abu Ghraib scandal, granting sources anonymity has provided the public with a window to important information that might otherwise have gone unreported.

Given that at least some anonymous sourcing is here to stay, it's worth taking a few moments to consider how to do so while minimizing your legal risk.

I know when I saw the quote from Time Magazine reporter Matthew Cooper describing his agreement with White House adviser Karl Rove as being one of "double super secret background," I had to do a bit of research to see if I'd missed something. I've heard the terms, "off-the-record," "not for attribution," "on background," and even "on deep background." But "double super secret background" seemed to take things to some entirely new and intimidating level. What on earth could Cooper have promised Rove?

In fact, even with the more common terms, such as "off-the-record" or "for background only," there is a surprising lack of consensus about their precise meaning. The term "off-the-record," for example, is not a legal term. While it is commonly understood that a remark made "off-the-record" cannot be reported in the same way as something said "on-the-record," not all journalists - and certainly not all sources - would agree on precisely what such a deal means. And that can cause serious practical, ethical and, potentially, legal problems.

A promise of confidentiality is, at its core, simply an agreement between a source and reporter. In fact, some have likened them to binding contracts where a reporter makes a promise to a source in return for the source providing the reporter with information. Under that view, violating the agreement would be akin to breaching a contract, with any resulting damages assessed against the wrongful party.

As with any agreement or contract, big problems can arise where the terms of the deal are not precisely spelled out or fully understood. For example, where a reporter agrees to go "off-the-record," has she agreed to not use the information provided by the source at any time, under any circumstances? Or can she report the gist of the facts the source provides, but not use any direct quotes? Or has she agreed not to attribute the information to the source but can point to some mystical "senior university official"? Or can the information be used only as a "tip," allowing the reporter to develop the lead on her own and report the information only if she can confirm it by other means? Finally, what if the information provided by the source proves false or becomes the focus of a libel lawsuit? What if the source lies? Can the source then be revealed? Each of these possible agreements varies significantly and it's essential that the precise meaning of "off-the-record" (or "background only" or whatever phrase is used) and other important terms be ironed out before an interview proceeds.

Also, because it is an "agreement," it's important to keep in mind that there must actually be some bona fide meeting of the minds before it can be enforced. Sources, for example, realizing at the end of an interview that they have said something they wish they hadn't, cannot unilaterally declare that the interview was "off-the-record" and unusable. Information knowingly provided to a reporter on-the-record remains on the record and subject to publication until the source and reporter agree to something different. (A variation on this can occur in those rare instances where you need the consent of a source to avoid liability for publishing something that might otherwise be unlawful. For example, if a generally private person consents to talk with you about their unusual sex practices or their rare illness, they can generally withdraw their consent up to the point of publication. While withdrawal of consent does not bar the publication of the information, it does preclude you from using consent as a defense if the subject later files suit for invasion of privacy.)

On the other hand, where a reporter agrees to meet with a source for an "off-the-record" interview, he or she must respect their agreement no matter how newsworthy or important the information subsequently revealed. Similarly, a reporter who has made an absolute promise to withhold a source's identity must understand that they are bound by their agreement no matter how uncomfortable or detrimental it might subsequently prove.

Promises of confidentiality are serious matters that can have far-reaching consequences for both sides. And they must be treated as such. For this reason, and others, it is suggested that student reporters not agree to an off-the-record interview without first consulting with their editor and weighing whether the benefits are worth the costs and risks. Frequently they are not. The Poynter Institute has a number of resources that can help reporters decide when and how to use anonymous sources.

And the "double super secret background" thing? Turns out Cooper pretty much invented the term. He said it was "a play on a reference to the film 'Animal House,' in which John Belushi's wild Delta House fraternity was placed on 'double secret probation.'"

Mike Hiestand is an attorney, based in the far, upper left corner of the "Lower 48," and works as a legal consultant to the Student Press Law Center.