On Friday, New York Sen. Chuck Schumer predicted the passage of his journalist protection bill, with 60 votes already lined up behind it.
“It’s very, very likely the Senate will pass a bill this year,” Schumer said. “Just about every Democrat is for the bill. … We have five Republicans on record being for it, three of them are co-sponsors.”
Schumer’s bill — the Free Flow of Information Act — passed committee in September and will be the nation’s first federal-level “shield law.” While many states have laws that protect journalists from being forced to disclose sources and informants, the federal government has shied away from putting into place a national standard. In 2008, the original bill was opposed by the George W. Bush administration and failed to receive cloture in the Senate.
Though Schumer’s bill will offer needed protections for journalists, many argue that it will actually cause more problems than it solves.
The 2013-2014 version of the act categorizes challenges to reporter-source confidentiality into three classes. First, in the case of civil litigation — such as libel cases — the plaintiff must prove that his or her need to know a journalist’s sources outweighs the public’s interest in unfettered reporting. In the case of a criminal case, the burden of proof moves to the reporter, who must prove by a “clear and convincing” standard that the public interest regarding the unfettered news reported outweighs law enforcement’s need for the reporter’s sources.
Finally, in the case of national security disclosures, requests to quash demands for sources can not be considered if it can be shown that the requested information could prevent an act likely to harm national security interests. The bill permits exceptions in regards to the advance notice news organizations would get if their records are being subpoenaed and to where journalists can be subpoenaed in times of a national security risk.
This “caving-in” to the administration and the intelligence community has led many to discount Schumer’s bill.
“As a Senator, [U.S. President Barack] Obama was a vocal supporter of a robust shield law; he co-sponsored a bill in 2007 and campaigned on the issue in 2008,” wrote Trevor Timm, an activist for the Electronic Frontier Foundation. “But when the Senate moved to pass the bill as soon as Obama came into office, his administration abruptly changed course and opposed the bill, unless the Senate carved out an exception for all national security reporters.”
“[It’s] important to remember: virtually the only time the government subpoenas reporters, it involves leak investigations into stories by national security reporters. So it’s hard to see how this bill will significantly help improve press freedom,” continued Timm. “Worse, there’s a strong argument that passing the bill as it ended in 2010 will weaken rights reporters already have and make it easier for the government to get sources from reporters.”
In an explanation to The Washington Post, University of Minnesota Law Professor Jane Kirtley explained, in response to Timm’s argument, that the Department of Justice would no longer be able to unilaterally make a decision on the validity of national security subpoenas. Instead, the Justice Department would need to convince a federal judge to make such a determination.
More troubling for many, however, is how the bill defines “journalists.” According to the bill, a covered journalist is “an employee, independent contractor or agent of an entity that disseminates news or information” who has been employed for at least one year within the last 20 or at least three months within the last five years. This determination excludes freelancers, independent reporters — such as Alexa O’Brien, who almost singlehandedly did all of the investigative reporting for the Chelsea Manning trial — and citizen journalists, who are increasingly responsible for the on-the-ground reporting in this age of shrinking news bureaus.
The bill was introduced after the Obama administration proposed new guidelines for the Justice Department’s relationship with journalists, which came in the wake of the disclosure of the Justice Department’s alleged eavesdropping on reporters’ telephones.
“They did make an effort as you know,” Schumer said. “They put out some guidelines, which are not good enough, but an improvement over current law, although the great weakness in their guidelines is not their fault, there’s still no independent judge. … The guidelines, in the administration’s defense, is an improvement. It’s not as good as the bill, but the administration after our compromise on the national security is now for the bill.”