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.
"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."
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.
"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.
In the current version of the Senate bill, a reporter associated with a professional or student media outlet is granted some ability to contest forced disclosure in criminal and civil cases, but would be forced to divulge information involving "properly classified" documents "reasonably likely to cause significant and articulable harm to national security" and in various criminal matters, likely failing to shield journalists in high-profile leak cases.
Sen. Mike Lee, R-Utah, voted against the bill in committee. This "legislation may have the effect of excluding certain persons from enjoying the added First Amendment protections the bill would provide, [so] I cannot support it," he told U.S. News in an email.
"[T]he judicial discretion set out in the adopted Feinstein amendment does not resolve my concerns," Lee said. "The extension of the bill's protections to a so-called 'citizen blogger,' a journalist who is not employed by traditional media outlets, is entirely subject to the judge's willingness to exercise discretion, after finding that doing so would be (a) in the interest of justice and (b) necessary to protect lawful and legitimate news-gathering activities. Thus, while for some the privilege is automatic and known in advance, those outside the favored status may only hope that a reviewing federal judge deems them sufficiently worthy of protection."
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