Several articles have reported on the proposed US media shield law, stressing that it was designed to exclude WikiLeaks from the shield protection. We summarize here what it is all about and quote several press articles.
Definition and background:
A shield law is legislation aiming to protect journalists and their sources.
According to Wikipedia:
“A shield law is law that gives reporters protection against being forced to disclose confidential information or sources in state court. (…) In general, a shield law aims to provide the classic protection of, “a reporter cannot be forced to reveal his or her source” law. Thus, a shield law provides a privilege to a reporter pursuant to which the reporter cannot be forced by subpoena or other court order to testify about information contained in a news story and/or the source of that information.(…)”
In the United States, 40 states currently have a shield law, which vary from state to state. There are also court judicial precedents, which are mostly based on the First Amendment of the Constitution (freedom of the press). But there has been no federal law proposed till now.
Several attempts to enact federal shield law were taken since 2007. In July 2013 a federal media shield law named the Free Flow of Information Act, was proposed by U.S. Senators Charles Schumer and Lindsey Graham. Last week, the Senate Judiciary Committee approved a new version of the proposed law, which is to be presented for a full vote in the Senate.
The debate around this proposed law is on how the protection should work, clarifying exactly who can call on this protection. In that process, the case of WikiLeaks is of particular concern for the lawmakers.
The definition of “journalist” or what category of persons are protected:
A central question in the debate over the current shield law is: “Shall the shield apply to every person acting like a journalist while collecting information to release it to the public, or is it supposed to protect only the “traditional” journalists, i.e. those working for mainstream media?”
In their article “Senate Revises Media Shield Law for the Better, But It’s Still Imperfect”, on September 20, EFF explains that:
The states that have adopted shield laws, and the courts that have found similar protections deriving from either the First Amendment or common law, have taken one or both of two approaches to this question. Some have adopted a “functional definition,” whereby the protection is available to anyone who is functioning as a journalist—that is, someone collecting information for the purpose of distributing it to the public. Others have adopted a “status definition,” in which the person entitled to the protection is defined by his or her employment or other affiliation with a media organization.
EFF further explains some positive and negative aspects of the future law.
The debate in the Senate Committee, as it has been reported by the press, shows the struggle to balance reporters’ privileges against the needs of law enforcement:
An article published by Kevin Gosztola in The Dissenter (Firedoglake) on September 12, 2013, titled “Media Shield Law, Which Aims to Protect Only ‘Real Reporters,’ Moves Onward to the Senate” reports:
Schumer [Senator Chuck Schumer, who introduced the law] 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.” (…)
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.( …)”
The result of the debate is often called a “compromise” between state and journalistic privileges. The definitive amendment offers the shield protection to employees, contractors or agents of a media entity, or more generally a person gathering information in order to disseminate it through a media entity, or persons who have practiced journalism during a year during the last 20 years or for any continuous three-month period over the last five years of for students participating to a journalistic media.
The proposed law contains a provision saying that the judge is empowered to extend the shield law’s protection to any person if it is necessary ” in the interest of justice”.
Nevertheless some comentators remain in a critical position. For example, an article published in Alternet on September 20 states that:
By not extending protection to a vital segment of investigative newsgatherers, the amended FFIA falls short of providing real benefits. More fundamentally, the distinctions created by the bill reinforce a privileged club for journalists. In essence, the government is licensing the press, and treading down a path that courts have for decades cautioned “present[s] practical and conceptual difficulties of a high order.”
The exclusion of WikiLeaks from the protection.
The Wikipedia article quoted before explains that:
“A primary objection to recent efforts to pass a federal shield law has been concern about leaks of classified information, particularly given the modern potential of such leaks to be published globally on the Internet by non-traditional recipients, such as WikiLeaks, who might claim to be “journalists” under an unqualified shield law. (Reiss, W. Cory. “Crime That Plays: Shaping a Reporter’s Shield to Cover National Security in an Insecure World”, 44 WAKE FOREST L. REV. 641 (2009).)”
This suggests that since the biginning of the legislative process, the will to exclude WikiLeaks or other WikiLeaks style organizations was present.
Without specifying WikiLeaks in particular, one opinion is that the shield has to cover traditional journalists in order to encourage sources to publish the information through them and avoid direct publication on Internet.
“Will information flow to the public after being mediated by professional journalists? Or will sources choose to disseminate information unmediated? In short, will sources dump information onto the Internet without giving it the scrutiny and, in some cases, the careful redaction that responsible journalists give?
This is a problem the government should consider: If sources fear that journalists, pressured by the threat of jail, will reveal their identities, then sources may take the safer route-for them-of anonymously dumping information on the Internet. The information will flow all too freely. ” (Jurist.org (Forum) Op Ed by guest columnist)
Finally, the amendment excludes openly WikiLeaks or Wikileaks- like organizations, as it states that the protection:
“does not include any person or entity 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”
The other persons or entities not included are foreign power agents and terrorists organizations, which suggests that the text considers nearly in the same level a publisher of primary source documents , and spies and terrorists.
Another concern about this law is the national security exception, which could permit to deny the benefit of the shield to a person, if an issue of national security is claimed by the government.
How does this debate take place in the US Legislative process?
In the US a bill can be introduced by a member of either the House of Representatives or the Senate. The proposed bills are referred to one or more House or Senate committees . The committee considers the bill in detail with debate (as mentioned above). If the committee approves the bill, it moves on in the legislative process.
The bill will after be placed on the legislative calendar of the House or Senate and scheduled for debate before the full membership before being voted on, with or without amendments.
Bills approved by one chamber of Congress (House or Senate) are then sent to the other chamber where they will follow the same track of committee to debate and to vote
When both the House and Senate have approved the bill in identical form, it is sent to the President of the United States to be signed in to law. (Special mechanisms are available if he doesn’t approve). See http://usgovinfo.about.com/od/uscongress/a/legprocess.htm for further information.
Full link to the amendment: http://www.spj.org/pdf/s-987-amendment.pdf