Holes in Media Shield Law Worry Opponents, and Even Some Supporters

It’s possible limited legal protections would shrink further, legal and media experts say.

Sen. Dianne Feinstein, D-Calif., talks to reporters before heading to a Senate Democratic policy luncheon on Sept. 17, 2013, in Washington, D.C.

Sen. Dianne Feinstein, D-Calif., talks to reporters before heading to a Senate Democratic policy luncheon on Tuesday, Sept. 17, 2013, in Washington, D.C.

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The so-called media shield law approved by the Senate Judiciary Committee Sept. 12 would likely fail to curtail the Obama administration's most controversial legal offensives against reporters, critics and supporters alike say. Furthermore, it's possible courts could also restrict limited reporter protections if the "Free Flow of Information Act" becomes law.

Since taking office in 2009, the Obama administration has presided over the prosecution of seven individuals for alleged violations of the Espionage Act of 1917 for providing information to journalists – more than all previous administrations combined. After seizing without notice two months of Associated Press phone records as part of a still-unresolved leak probe – an act that stunned many Americans when it was disclosed May 13 – the Obama administration and its allies in Congress, notably Sen. Chuck Schumer, D-N.Y., resumed a push for a media shield law to ostensibly protect journalists from court-ordered disclosure of their sources and to provide them an opportunity to contest seizure of their work-related communications.

[READ: AP to Eric Holder: 'No Possible Justification' for Phone Record Seizure]

"Whether or not it would have helped in this particular situation or not, it doesn't matter. The fact is that it's likely to help in a lot of other situations," Society of Professional Journalists President David Cuillier, also director of the University of Arizona's journalism school, told U.S. News. "My sense is the federal government would still try to do that sort of sleazy spying whether there is a shield law or not."

Cuillier supports the shield law proposal and says although it may not benefit reporters in some of the most high-profile disputes, it stands to protect the hundreds of others slapped with subpoenas each year for various records.

"There are a lot of journalists who are opposed to this shield law, they don't think it's good enough, they think it's watered down and toothless, and in some ways could hurt journalists," he acknowledges. "I don't think the shield law is strong enough. [but] it's as good as we're going to get initially."

 

The proposed law would allow the government to seize reporters' records without notifying them for 45 days – a period of time that could be renewed by a judge 45 additional days – if investigators convince a judge pre-notification "would pose a clear and substantial threat to the integrity of a criminal investigation." When the AP's phone records were taken without notice to the news organization – bypassing Justice Department guidelines advising notice and negotiation with the media company – the government used just such an exception, saying notice would "pose a substantial threat to the integrity of the investigation."

[ALSO: DoD Too Broke to Replace Fax Machine, Take FOIA Requests?]

Barry Pollack, a Washington, D.C.-based attorney representing WikiLeaks publisher Julian Assange, told U.S. News the bill does contain protections for some reporters. "The question is," he said, "if this is passed, how will courts enforce it?"

Pollack pointed to federal law governing wiretap warrants. "Under the statute [a wiretap warrant] is only supposed to be extended if you show why it wasn't effective during the first period of time, but what's happened over time is that protection has been eroded because courts have routinely granted serial extensions. When only one side is presenting evidence, it's not surprisingly the evidence the court hears is very slanted," he said. "We've seen that repeatedly with the [Foreign Intelligence Surveillance] Court."

Cuillier said the law significantly introduces a judge into decision-making about record seizure and would protect against many day-to-day seizures, such as a videotape of a protest.

Although judges could benefit journalists by restraining Department of Justice seizures, he said, courts could also restrict the limited rights guaranteed to journalists in a shield law.

Cuillier noted courts have restricted, rather than broadened, access to public records under the Freedom of Information Act with rulings specifying that out-of-state residents aren't entitled to state records, and imposing the "central purpose test" that restricts what records the public can seek.