Keeping undercover reporting above the law

It’s a call we usually receive a few times a semester: A student reporter is interested in finding out how easy it is to acquire an illegal substance. Whether it’s purchasing cigarettes or alcohol as a minor, buying an illegal drug or a fake ID, or attempting to procure a service that is itself unlawful or perhaps unlawful for minors to purchase on their own (tattoos, body piercings), the general idea is that the reporter will go “undercover,” attempt to make the purchase, sometimes interview those involved and then report his or her findings.

The stories can make for compelling reading and often open at least a small window, illuminating a world or a problem that is unknown to many readers — particularly those who aren’t students.

A great example of such reporting was an investigation into the illicit use of the drug Aderall among college students conducted by the nonprofit Wisconsin Center for Investigative Journalism and journalism students at the University of Wisconsin-Madison late last year.

Adderall is prescribed to treat Attention Deficit Hyperactivity Disorder (ADHD). But with the journalism students posing as interested buyers without a prescription, the investigation showed the drug is also used — and readily available — by students hoping to turbo-boost their studying by sharpening concentration and providing extra energy to pull all-nighters. As one of the students interviewed for the story said, “When I first started taking Aderall, I was like Superwoman.”

But such gains, the report showed, can come at a price, with students, school officials and law enforcement often unaware of some of the drug’s side effects.

It’s the sort of reporting that can spark needed inquiry and change.

But it’s also the sort of reporting — if not done carefully (and there is no indication that the Wisconsin reporting was not done carefully) — that could land you in legal hot water and/or raise ethical eyebrows.

Among other concerns, such reporting often requires promising some of your sources — namely, those who admit to using or selling an illegal substance or partaking of an unlawful service — that you’ll keep their identities secret.  Promising a source confidentiality is never something that should be done routinely or without serious consideration beforehand.

Withholding important information from your readers that would allow them to independently judge the credibility of your source is a big price to pay. Moreover, once you make a promise — you must be prepared to keep it. While the law can often provide protection to reporters hit with a court order to reveal their source, such protection is rarely a sure thing — which is why you see reporters occasionally spending time in jail to keep their promises.  While such events are thankfully very rare, I usually tell reporters that before you make that promise, you should ask yourself whether you’d be prepared to join them.

The other big issue is the undercover reporting itself. For example, most states and the federal government have enacted laws or regulations that prohibit the sale — and often the purchase or even attempted purchase — of tobacco or alcohol to minors.

While their intentions in making or attempting to make an unlawful purchases may be laudable, that won’t necessarily save student reporters from avoiding the consequences should they be caught. Journalists generally have no special license to break the law or engage in any other activity prohibited of the general public. While a student reporter may be able to convince police that she never intended to drink or sell the six-pack of beer she purchased, police are not obligated to accept her explanation.

Additional complications can arise if a faculty adviser — a school employee legally bound to protect the welfare of his students — knows of and approves his students’ plan to make such illegal purchases.

Undercover reporting of this sort also has its own potential ethical traps. For example, we have occasionally heard from student reporters who have worked out deals with law enforcement to essentially be part of a “sting” operation where those who sell to the reporter or admit to some unlawful act are busted and subject to the legal consequences for their action. While taking such precautions may help student media avoid legal problems, they raise ethical concerns about the credibility of the press as a free and independent source of news. While some have done it, bona fide journalists are generally loath to put themselves in a position that makes it appear as though they are acting as government agents, something that endangers future reporting. Sources are unlikely to talk to journalists — or worse — if they can’t trust them.

Undercover reporting can yield wonderful, important stories. But plan carefully, and keep it above board.