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.
"It's hard to say how the courts would interpret shield law legislation. It's hard to predict courts, which direction they will go," he said. "The courts [sometimes] just bungle things, they misinterpret the intent of the statutes."
Pre-notification of record seizure under the proposed law could also be waived if notice would allegedly risk serious injuries, deaths or "grave harm to national security."
The "harm to national security" standard could invalidate protections for reporters working on stories about leaked information – for example, copies of documents leaked by former National Security Agency contractor Edward Snowden.
"Lawmakers introduced this bill after the federal government violated press freedom by probing the phone records of Associated Press reporters, yet it does the very thing it purports to stop," said Jason Stverak, president of the Franklin Center for Government and Public Integrity, in a Monday statement denouncing the proposal. "Rather than provide a 'shield' for journalists so that the government cannot force them to reveal confidential sources... [it] leaves gaping loopholes of vague language ripe for government exploitation."
For critics, the most heinous aspect of the pending bill is its definition of who is – and more specifically, who is not – a journalist.
An amendment successfully pushed by Sen. Dianne Feinstein, D-Calif., intentionally excises WikiLeaks publisher Julian Assange from supposed legal protections for journalists. Assange's role in disseminating and offering commentary on leaked primary source material on the U.S. wars in Iraq and Afghanistan and State Department cables infuriated Feinstein, who in a 2010 Wall Street Journal op-ed insisted that Assange be put on trial under the Espionage Act.
Feinstein's successful amendment specifically removes from the protected journalist pool terrorists, agents of foreign governments and 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."
Pollack said the amendment "runs contrary to the First Amendment," which itself does not define press membership. "The very purpose of the First Amendment is to prevent Congress from picking and choosing which type of disseminators of information are worthy of protection," he said.
"It is particularly ironic that it determined that those journalists who provide truthful information directly to the public for its consideration are less deserving of protection than those who filter what information they provide to the public," Pollack said.
Pollack represents Assange in the U.S. where the leak-facilitator is a subject in an ongoing grand jury investigation into WikiLeaks. Other attorneys represent Assange in Europe, where he is holed up in Ecuador's London embassy to avoid extradition to Sweden for questioning about alleged sex crimes.