Senator Lindsey Graham (R-SC) and Senator Chuck Schumer (D-NY) confer during a news conference for new media shield legislation, July 17, 2013. (Reuters/Jonathan Ernst)
When a federal appeals court ruled in July that the First Amendment did not protect New York Times reporter James Risen from being compelled to testify against a former CIA official charged with leaking classified documents to him, it set a precedent with grave implications for investigative journalism, particularly in matters of national security.
The ruling followed revelations that the Department of Justice secretly seized the records from Associated Press phone lines and the emails of Fox News reporter James Rosen, who the DOJ deemed an “an aider and abettor and/or co-conspirator” in a criminal leak of State Department records. This aggressive pursuit of journalists and their sources reignited calls for federal media shield legislation, which had stalled out twice in Congress.
Yesterday, the Senate Judiciary Committee passed the “Free Flow of Information Act,” designed to protect journalists ordered to reveal confidential information. Because of a loophole for national security cases, however, the law may not shield the reporters who need it most—like Risen.
As written, the Senate bill would not protect journalists if the government could make the case that the information sought would assist in mitigating “acts that are reasonably likely to cause significant and articulable harm to national security,” a phrase so full of ambiguities as to be essentially useless. “Basically all leak cases that involve journalists’ emails or themselves getting subpoenaed to appear in front of a judge involve national security cases, so this exception basically just tilts the playing field to the government. The burden that the journalist has to overcome is virtually impossible,” said Trevor Timm, the executive director of the Freedom of the Press Foundation. “The way the bill is written gives all deference to prosecutors’ claims on national security.”
While the Obama administration’s campaign against leakers spurred the reintroduction of the shield law, the national security carve-out rendering it toothless is the president’s work, too. Obama cosponsored the original shield legislation in the Senate, only to demand deep revisions from the Oval Office in 2009—including the exemption for leaks affecting national security. “The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback,” Senator Chuck Schumer, who was a primary sponsor of the legislation, said at the time, noting, “it will make it hard to pass this legislation.” Indeed, the bill died in the Senate.
Days after the AP story broke in May, Obama asked Schumer to reintroduce the legislation, which included the national security loophole. But most of the following media scrutiny focused on a different flaw in the legislation: its attempt define who qualified as a journalist.
When the Department of Justice rolled out new policies intended to “strengthen protections for members of the news media” this summer, it wasn’t clear who belonged to the “news media.” Other DOJ documents suggest a narrow application to professional, traditional journalists. (The DOJ did not return a request to clarify the agency’s definition of “news media.”) The Federal Bureau of Investigation’s Domestic Investigations and Operations Guide excludes bloggers from the news media, along with “persons and entities that simply make information available,” like Wikileaks. These policies are guidelines, not directives, but as the Freedom of the Press Foundation points out, they are “part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it.”
Senator Dianne Feinstein argued for an amendment that would have restricted the shield to salaried journalists. “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 during Thursday’s markup. The committee compromised, defining a “covered journalist” as someone who has worked for at least one full year in the last twenty, or for a continuous three-month period within the last five years; has contributed to a “significant number” of published works within the past five years; or is a journalism student.
Critically, the Senate bill gives judges discretion to apply the protections “in the interest of justice” to any other person who doesn’t fit the criteria for a “covered journalist.” Several press freedom advocates said this provision alleviates many of their concerns that the bill’s definition of a journalist wasn’t inclusive enough. “The definition is one of the most problematic and difficult areas of the shield law. Giving judges this power and discretion is a really good idea,” said David Greene, attorney for the Electronic Frontier Foundation. Both Timm and Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, said that the shield would now probably apply to many bloggers that had previously been left out.
Still, advocates point out that protecting acts of journalism, rather than journalists, would provide a more robust and inclusive defense, particularly for nontraditional reporters. Journalism, said Harvard legal studies professor Yochai Benkler, “is not an institution anymore. It’s a function.” He went on, “What this law does is try to close its eye and shut its ears to the fact that this new third modality of production—the decentralized, the social, the engaged non-profit—is as central to the ecosystem as commercial entities are.”
According to Benkler the shield “essentially puts a thumb on the scale” against independent or citizen journalists, privileging corporate media outlets. “For any potential source, it increases the risk of going through a non-establishment journalist,” he said. “If you are a source, and you have a choice between going to feed someone who clearly falls under the shield, and someone you have to rely on pulling the right judge, you’re going to go to the established journalist.”
Another area of concern is a provision known as the “Wikileaks exemption.” The law explicitly excludes people and organizations “whose principal function…is to publish primary source documents that have been disclosed…without authorization.” Wikileaks is hardly the only organization that might fall within this category. “Part of journalism, especially when you have the capacity to do so, is disclosing primary source documents,” said Greene, who believes the exemption could capture entities and people legitimately practicing journalism depending on how “principal function” is interpreted.
The House Judiciary Committee has yet to consider its version of the shield law, which in many respects offers the broader protections that advocates would like to see in the Senate’s bill. The House version does not include such a wide national security carve-out, and defines a “covered person” simply as anyone engaged in, “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”
Even the Senate’s version, many advocates said, would be better than nothing. It’s impossible to tell how broadly the national security exemption would be interpreted in court; Benkler said he expected to see “a lot of legal wrangling.” But Timm isn’t convinced the shield is worth much if it doesn’t protect the journalists most likely to be targeted by the government, namely national security reporters. “It’s kind of disingenuous to say this bill alone would fix those problems,” he said.
Tim Shorrock covers Obama’s crackdown on whistleblowers.