Reporters Without Borders welcomes the action taken by the United States Department of Justice (DOJ) to tighten the guidelines its prosecutors use in investigations involving the news media, but remains concerned about the direction of media freedom in the U.S. The new guidelines were designed in response to criticism levied over the handling of controversies involving the seizure of Associated Press telephone records and the search warrant for a Fox News reporter, but there is still much to be desired from the media freedom environment in the U.S.
“While the recently released guidelines by the DOJ are a step in the right direction, in that they restrict the use of subpoenas and search warrants for journalists, the war on whistleblowers and the lack of protection for journalistic sources are still unaddressed at the federal level, as well as the recent ruling regarding James Risen poses major concerns. Essentially, this is one step forward, two steps back for media freedom in the United States” said Reporters Without Borders.
On July 19, a two-to-one ruling from the fourth circuit appeals court in Richmond, Virginia found that New York Times reporter, James Risen, must give evidence at the criminal trial of a former CIA agent who is being prosecuted for unauthorized leaking of state secrets. Jeffrey Sterling, the agent in question, is charged with leaking information to Risen in violation of the Espionage Act. The information was made public in a chapter in Risen’s book, State of War: The Secret History of the CIA and the Bush Administration, which revealed a covert operation involving an attempt to supply Iranian officials with flawed nuclear weapons plans. In response to this verdict, Risen said to Reporters Without Borders, "although I am disappointed in the court's decision, I remain as resolved as ever to continue fighting. I will always protect my sources." At the time of publication of this press release, James Risen and his lawyer have not yet decided on their next legal action.
“Leaks are the lifeblood of investigative journalism,” stated Reporters Without Borders, “given that nearly all information related to national security is considered ‘secret’ and that the DOJ has argued in the past that reporter’s privilege does not exist at all for national security reporters, it is safe to say that this crackdown against whistleblowers is designed to restrict all but officially approved versions of events and information. These developments highlight the need for a comprehensive, federal shield law in the U.S.” added the organization.
A shield law is a law that gives journalists protection against being forced to disclose confidential information or the identity of a source. Confidential sources are a vital element of a journalist’s profession and without protection, sources are unlikely to come forward in the future and the truth surrounding controversial events may not materialize.
On May 15, 2013, the White House asked Senator Charles E. Schumer (D-NY) to reintroduce a version of the Free Flow of Information Act, a proposed shield law, that he’d championed back in the 2009 Senate. Representative John Conyers (D-Michigan), Representative Ted Poe (R-Texas) and Representative Trey Radel (R-Florida) have also sought to reintroduce a previous House version of a shield law.
However, the version the Obama administration is hoping to revive is the 2009 Senate version, which maintains broader exemptions for disclosing sources and confidential information than its House counterpart. Furthermore, similar to the Whistleblower Protection Act, the Senate bill contains major exemptions for any leak-based reporting that affects national security. Beyond national security, the proposed Senate shield law would specifically exclude WikiLeaks and other internet-based groups that do not fit the strict language crafted by lawmakers to define a news organization. Similarly, the language defining who qualifies for protection as a journalist would not cover some online reporters, bloggers and freelance writers, depending on their contractual status.
“It is important that any shield law passed actually addresses the issues that are currently plaguing journalists.” said Reporters Without Borders. “The Senate version would not have protected the Associated Press from the government’s investigation of their phone records, nor would it have protected Fox News’ James Rosen,” continued the Paris-based NGO. “Confidential sources have been integral in informing the public of the government’s actions, such as the abuse of prisoners in Abu Ghraib and the Watergate scandal. These events highlight the fact that public debate on American military and intelligence methods is crucial for establishing government oversight. Without a properly equipped shield law, investigative reporting may be rendered toothless in America” added Reporters Without Borders.
These media freedom concerns are part of a wider trend that has come to light in recent months. The Obama administration has named James Rosen of Fox News as a co-conspirator in its case against State Department leaker Stephen Jin-Woo Kim. Moreover, Jeffrey Sterling, the former CIA employee, is the seventh former government employee to face prosecution under the Espionage Act since Obama took office, alongside former NSA contractor Edward Snowden, and Bradley Manning, who is currently on trial for passing documents to WikiLeaks.