Child-porn story sparks ethics debate

Amid his reporting, New York Times reporter Kurt Eichenwald became involved in the story. He convinced his then-18-year-old source to stop taking drugs and stop posting pornography online. When the source felt threatened by a past molester, Eichenwald and the Times arranged for the source to travel to a distant city. When the source gave the reporter evidence of other children being molested, Eichenwald and the Times took action.

In a reporter's essay, Eichenwald writes:

Editors agreed that The Times needed to review the evidence to verify Justin's story; if it supported what he said, The Times would attempt to persuade him to contact law enforcement. Though the role of journalists is to report news rather than report illegal activity to law enforcement, in this instance The Times decided it was important that authorities learn what Justin knew so that they could take any steps needed to protect the children he said were still at risk.

We flew to California and I examined the hard drives. The review convinced me that Justin's story was true. I connected him with a lawyer - Stephen M. Ryan with Manatt, Phelps & Phillips - who agreed to represent him and who contacted prosecutors. Two weeks later, at Justin's request, I accompanied him to Washington for his first meeting with the government. By then, someone I contacted had offered to give Justin a place to live, and after his interview, he headed to that new location.

The story that Eichenwald produced gives a chilling and riveting glimpse into a "sordid online world" where adult predators pay children for "performing in front of the Webcam - undressing, showering, masturbating and even having sex." In the case of Eichenwald's source, Justin Berry (according to the Times, he agreed to have his name published), the paid performances led to in-person molestation by his predatory "fans."

Writing at the CBS News "Public Eye" blog, Brian Montopoli noted the ethical questions raised by the actions of Eichenwald and the Times but applauded the results:

The strategy undertaken by Eichenwald, who consulted with his editors throughout the process, probably violated some of the standard conventions of the journalist-subject relationship, but I think even the most traditional journalism ethics professor would be hard pressed to make a case against him, in light of the larger picture.

Less forgiving, however, was Slate press critic Jack Shafer, who raised several objections. "While I admire Eichenwald's journalistic enterprise and thoroughness," Shafer writes, "I'm astonished at how he loses control of his 6,500-word investigation when he appears two-thirds through it to serve not as a reporter but as the legal advocate and protector of the now 19-year-old Berry."

Analyzing the ethical case, Shafer applies an absolutist, consequentialist view. He writes:

In other words, Eichenwald helped convince Berry to quit porn and quit drugs. He found him a lawyer. The lawyer, in turn, persuaded federal prosecutors to give Berry immunity for serving as the state's witness.

What extraordinary intervention! The analogies aren't perfect, but imagine a Times reporter encountering an 18-year-old who had been thrust into the illicit drug business at 13 as a consequence of his neglectful family and unscrupulous dealers? Would he help the young man leave the drug trade and find him a lawyer at a Washington firm who is "a former federal prosecutor," as Eichenwald did Berry? Not likely. Would a Times reporter extend similar assistance to an 18-year-old female prostitute? An 18-year-old fence? A seller of illegal guns? No way.

To the argument that Eichenwald deserves our praise for aiding the adult Berry, who has been victimized, I offer this counterargument: Hasn't the Times put the next reporter assigned to the online pornography story into a nasty jam? Will the just-turned-18-years-old subjects expect future reporters to 1) help get them a lawyer who will 2) assist them in becoming witnesses for the prosecution, because Eichenwald helped Berry? Will online pornographers and other allied criminals now regard reporters as agents of the state? Don't be surprised if they start treating reporters as cops.

Absolutist and consequentialist arguments have inherent flaws, however. Humans have a limited ability to predict the future, so arguments about future consequences must necessarily be limited as well. (Should journalists base their current actions on the anticipated future actions of "online pornographers and other allied criminals"?) Slippery-slope arguments rarely take in the full array of variables at play. Also, while hard-and-fast rules and prohibitions are often useful in general terms, extreme situations (such as the one in which Eichenwald found himself) can make such rules and prohibitions woefully inadequate. As Eichenwald himself notes in a response to Shafer, "the whole issue of ethical judgments is context." Following his usual practice, Shafer admirably posts his subsequent correspondence with Eichenwald in full at the bottom of his critical story. Eichenwald ultimately makes a compelling case:

My hope is, if you were in our position, rather than looking at it from the rear view mirror, you would have made the same call. Because there is no telling whether these children would have survived had we gone down the path you are suggesting. And I just simply cannot believe that the ethics of our profession require us to stand by and let children be abused or killed—or for us to risk even causing their deaths, by recklessly endangering them. Could we even be held criminally liable for such a death, since we made the call knowing such an outcome was likely?

However, I am glad you noted my point about there being no good decision. We had none available. Every option had a down side—but, I could not be prouder of the New York Times than in knowing that, when those tough choices had to be made, they came down on the side that meant saving children. Then, knowing that there would be those who would disagree with the tough call we made, they came down on the side of disclosing everything we did, allowing journalistic ethicists who were not in the horrible position of making this decision to criticize us for it.