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Media Shield Law, Which Aims to Protect Only ‘Real Reporters,’ Moves Onward to the Senate

Sen. Dianne Feinstein at Senate Judiciary Committee meeting discussing proposed federal media shield law

The Senate Judiciary Committee passed legislation that would establish a federal shield law for reporters or journalists in the United States. The legislation was amended, before passing out of committee, to define who would be a “covered journalist” under the proposed shield legislation.

The proposed shield legislation, the Free of Flow of Information Act of 2013, was introduced by Sen. Chuck Schumer as news of the Justice Department seizing an overly broad set of the Associated Press’ phone records for a leak investigation and of an FBI agent labeling Fox News reporter James Rosen an “aider, abettor and co-conspirator” in a leak investigation were making headlines. However, there is nothing immediately obvious in the proposed media shield that would protect the press from an agency in government committing those kind of abuses. It would not protect someone like New York Times reporter James Risen, who the administration of President Barack Obama has tried to force to testify against his source in a leak case despite protest from media organizations.

Schumer 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.”

The proposed shield legislation would make newly revised Justice Department guidelines the “law of the land,” according to Schumer. This means the Justice Department would not be authorized to delay notifying a reporter when their records were sought after 90 days.

When government sought records, not just records of third-party communications, the reporter or media organization would have to be notified. It would “harmonize” with the Electronic Communications Privacy Act to protect reporters (although that may not be too reassuring to members of the press since that legislation passed in 1986 is sorely in need of being updated and overhauled).

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. As I described the last time this committee passed this legislation, this could have been interpreted to cover hate websites. like that of the neo-Nazi organization, the National Socialist Movement or even Senate press secretaries,” Feinstein suggested.

Feinstein said the amendment sets up “a test for establishing bona fide credentials that make one a legitimate journalist.”

A “covered journalist,” under the amendment, would be the following:

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."