Sen. Dianne Feinstein at Senate Judiciary Committee meeting discussing proposed federal media shield law

The Senate Judiciary Committee passed legislation that would establish a federal shield law for reporters or journalists in the United States. The legislation was amended, before passing out of committee, to define who would be a “covered journalist” under the proposed shield legislation.

The proposed shield legislation, the Free of Flow of Information Act of 2013, was introduced by Sen. Chuck Schumer as news of the Justice Department seizing an overly broad set of the Associated Press’ phone records for a leak investigation and of an FBI agent labeling Fox News reporter James Rosen an “aider, abettor and co-conspirator” in a leak investigation were making headlines. However, there is nothing immediately obvious in the proposed media shield that would protect the press from an agency in government committing those kind of abuses. It would not protect someone like New York Times reporter James Risen, who the administration of President Barack Obama has tried to force to testify against his source in a leak case despite protest from media organizations.

Schumer said during the Judiciary Committee meeting that it would provide a shield for reporters “against unwarranted intrusion” (a reporters’ privilege) but would be “flexible to account for the legitimate needs of law enforcement, private litigants and national security.” He added, “It’s Kevlar, not Kryptonite.”

“Prosecutors will lose sight of the need to preserve the free flow of information and in their understandable zeal to prosecute leakers who would seek to do harm to our country in one way or another,” Schumer said. The bill, sponsored by Sen. Richard Blumenthal, Sen. Lindsey Graham and Sen. Amy Klobuchar, “would preserve that ability but with real protections and notice for journalists in all but the most extreme cases.”

The proposed shield legislation would make newly revised Justice Department guidelines the “law of the land,” according to Schumer. This means the Justice Department would not be authorized to delay notifying a reporter when their records were sought after 90 days.

When government sought records, not just records of third-party communications, the reporter or media organization would have to be notified. It would “harmonize” with the Electronic Communications Privacy Act to protect reporters (although that may not be too reassuring to members of the press since that legislation passed in 1986 is sorely in need of being updated and overhauled).

An amendment from Senator Dianne Feinstein and Senator Dick Durbin passed in committee. As Feinstein said when presenting the amendment, “I’ve had long-standing concerns that the language in the bill as introduced would grant a special privilege to people who really aren’t reporters at all, who have no professional qualifications whatsoever.”

“The fundamental issue behind this amendment is, should this privilege apply to anyone, to a seventeen year-old who drops out of high school, buys a website for five dollars and starts a blog? Or should it apply to journalists, to reporters, who have bona fide credentials?” Feinstein asked.

“This bill is described as a reporter shield law. So, I believe it should be applied to real reporters. The attorney-client privilege applies to attorneys, not any non-legal advisor. The spousal privilege applies to spouses, not to boyfriends and girlfriends. As I described the last time this committee passed this legislation, this could have been interpreted to cover hate websites. like that of the neo-Nazi organization, the National Socialist Movement or even Senate press secretaries,” Feinstein suggested.

Feinstein said the amendment sets up “a test for establishing bona fide credentials that make one a legitimate journalist.”

A “covered journalist,” under the amendment, would be the following:

…an employee, independent contractor, or agent of an entity or service that disseminates news or information by means of newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service (whether distributed digitally or other wise); news program; magazine or  other periodical, whether in print, electronic, or other format; or through television or radio broadcast, multichannel video programming distributor (as such term is defined in section 602(13) of the Communications Act of 1934 (47 U.S.C. 522(13)), or motion picture for public showing…

That person must also have the “primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest.” Or, that person should be engaged in the “regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters.”

A person would also qualify as a “covered journalist” if they had experience in journalism and had “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications” in the past twenty years. As Feinstein said, it would “cover a legitimate journalist such as a Dan Rather who leaves his media entity and takes to publishing freelance stories on the web.” [Note: Rather didn't "leave"; he was fired for reporting a story on President George W. Bush.]

Feinstein highlighted a “safety valve” in the proposed shield legislation that would authorize a “federal judge to apply the privilege to a person who doesn’t fall within the parameters of one of the previous definitions if the judge determines based on specific facts contained in the record that doing so would be in the interests of justice and necessary to protect lawful and legitimate news gathering activities under the specific circumstances of the case.”

“I believe the language ‘legitimate news gathering activities’ is the key and would exclude hate websites and other persons who are not actually engaged in the pursuit of journalism,” Feinstein stated.

There were amendments offered by Senator John Cornyn and Senator Jeff Sessions that failed. Both Cornyn and Sessions argued the proposed shield legislation would create risks to national security by exempting reporters from law enforcement investigations or protecting leakers. The legislation does not do that at all, and, in fact, contains a section that broadly seeks to protect so-called national security interests of the United States.

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ADDITIONAL ANALYSIS

First, let’s not get away from what the value of a media shield law would be and why it is needed.

According to the Society for Professional Journalists (SPJ), “Government officials have attempted to jail and even bankrupt journalists to force them to reveal their sources or information they have gathered. A study conducted by Brigham Young University law professor RonNell Andersen Jones, for example, found that in 2006 alone journalists were served with more than 7,200 subpoenas from state and local governments, and about 800 from the federal government. Some news organizations are served more than 25 times a year, and most newsroom leaders perceived a continual increase in government action to compel journalists to talk. In 2006, for example, blogger Josh Wolf of California was jailed for 226 days because he wouldn’t hand over video he shot while covering a protest.”

More than forty states have some kind of a shield law that provides some level of protection for reporters, but there is no federal shield law.

The proposed shield law as passed would provide some protections against journalists being forced to reveal their sources. However, the Feinstein-Durbin amendment passed is very problematic specifically because a shield law should cover the act of journalism, not journalists.

While Cornyn is opposed to the idea of a shield law, he made a reasonable statement during the committee meeting on the legislation:”Any carve out of particular media for protection and special treatment is in effect government licensing of legitimate media.”

Cornyn actually proposed an amendment that would have undone the Feinstein-Durbin amendment by making the “covered persons” anyone who would be covered under the clause of the Constitution that grants citizens a right to freedom of the press.

Sen. Mike Lee opposed the proposed shield legislation and said, “Because this legislation may have the effect of excluding certain persons from enjoying the added First Amendment protections the bill would provide, I cannot support it.”

It would not protect “citizen bloggers,” because, as Durbin argued, “If you open the door to anyone who blogs, you have opened the door in terms of national security and safety far wider than I think it should be.”

Feinstein made it clear she could not support a bill “if anybody who sits down and goes out on a blog is suddenly a journalist.” She said, “Otherwise, it’s open sesame. Anybody can say anything with no background, no integrity. If a Snowden were to sit down and write this stuff, he’d have a privilege and I’m not gonna go there.”—which is not true at all.

Former National Security Agency contractor Edward Snowden or anyone like him would not be protected. He would be publishing classified information without authorization and, as a government contractor, would be subject to the same charges and prosecution that led him to flee the United States in the first place.

As a media coalition wrote to Judiciary Committee Chairman, Sen. Patrick Leahy, in support of the proposed shield legislation:

The bill would circumscribe this privilege in those limited cases where a journalist has confidential information that would prevent an act of terrorism or other future significant harm to national security, an exception whose limited nature needs to be underscored in the legislative history. The bill does not create new procedures in federal court. The Act would simply provide judges with clear standards for reviewing a motion to quash a subpoena or other compulsory process, which is a common procedure within the judicial system.

Thus, Feinstein and Durbin’s concerns are ridiculous and obviously in deference to the national security establishment. Covering all “citizen bloggers” would not open up the country to greater national security risk because they would be denied protection if they had information that could prevent “future significant harm to national security.”

It is true, as Sen. Sheldon Whitehouse said during the meeting, there is no privilege for reporters under the First Amendment so this amendment would not take away any First Amendment rights. However, that misconstrues the issue, which is that in the process of granting a group of citizens protection the Congress may be improperly depriving other citizens from being afforded that protection. And that does implicate the First Amendment or freedom of the press.

Another problematic part of the amendment—call it the anti-WikiLeaks section—states that anyone “whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization” should not be covered. This is designed to prevent employees of leaks-based media organizations from being protected

This is why the proposed shield legislation should cover acts of journalism and not journalists. In seeking to exempt WikiLeaks, which would not be covered anyways because its staff are not US citizens, the Senate Judiciary Committee is seeking to exempt a set of people, who engage in a form of networked journalism that is limited to the gathering of information and dissemination of that information, which may be in the public interest.

The information is no different than information The New York Times or The Washington Post may work with when writing stories except in this case, instead of writing stories, the information that would have formed the basis of a story is published for consumption after being authenticated and possibly redacted to protect certain individuals named.

Feinstein and Durbin may see this as protecting against the rise of leaks-based journalism, but it actually doesn’t do much to stop it at all. Those organizations will now go to even greater lengths to encrypt communications so they do not know the identities of individuals providing material. They’ll still receive information and partner with news organizations to publish stories, but they won’t risk having knowledge of sources that could put themselves at risk. So, when targeted and asked during an interrogation to answer questions, it will be futile because those reporters or journalists will not know in the first place.

In conclusion, the legislation is flawed because it should cover all citizens who engage in acts of journalism from being forced to give up their confidential sources. Senators appeared to understand that because they supported expanding it to protect non-traditional journalists like authors of nonfiction books and filmmakers. They even expanded it to cover individuals who use mobile applications to do journalism.

Not all bloggers are dropouts or people who spew hate-filled speech on blogs they purchased for five dollars (especially since their are multiple services, including Blogger and Tumblr, that allow for one to do news reporting on a website without purchasing a domain). So, this perception of “citizen bloggers,” that giving them protection would threaten national security and sully the profession of journalism, should be challenged.

One can only conclude that this version of a shield law is motivated by a bias against bloggers, particularly “citizen bloggers.” These are not “professional journalists” and could not be “professional journalists” in their eyes. Yet, I would argue, although they may not be a part of any official press associations or employed by any established media organizations, they may engage in good tradecraft and practice “professional journalism” on a regular basis independently. This may even be something that person does in addition to their job, and they would deserve to enjoy the same additional First Amendment protections as any professional employed journalist.

For more insight, read Morgan Weiland of the Electronic Frontier Foundation here or Marcy Wheeler here.