The draft federal law on the protection of journalists’ sources – the so-called media “shield law” - that the Senate Judiciary Committee approved on 12 September unfortunately falls far short of Reporters Without Borders’s recommendation on this subject.
Its reintroduction in Congress following revelations about the seizure of the Associated Press’ phone records was an encouraging sign. But some of its current provisions do not provide enough protection and could even pose a danger to investigative journalism.
“The version of the shield law that was passed by the Senate Judiciary Committee has major flaws,” Reporters Without Borders said. “It is based on a much too restrictive definition of who is a journalist, one that in practice excludes bloggers and other news providers.
“And as well as limiting its beneficiaries, the law would not necessarily apply to all those covering national security issues and other matters of major public interest. It will be an empty shell if it is not amended so as to provide journalists and other news providers with more protection.
“In its current form, the shield law would not have prevented the Department of Justice’s seizure of the AP’s phone records, it would not have given James Rosen of Fox News any more protection against the FBI’s hunt for his sources, and it would not have spared James Risen of the New York Times from a subpoena ordering him to name his sources, a subpoena still in effect.
“These examples nonetheless all testify to investigative journalism’s importance. What would we have known about the Watergate scandal without investigative journalism? Or the extremely grave human rights violations that have been committed in the name of the war on terror? When a witch-hunt is on for sources, this shield law would not be up to the job.”
Some senators have made no secret about their intentions. Dianne Feinstein (Democrat-California) said only “real reporters” should be protected, adding that she could not support the bill if it provided protection to people like Edward Snowden.
A similar comment was made by Chuck Schumer (Democrat-New York), the senator who introduced the bill: “We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those.”
Schumer added that it would not cover “any person or entity whose principal function (…) is to publish primary source documents that have been disclosed to such person or entity without authorization.”
So how much real confidentiality would journalists be accorded if the bill were passed in its present form? It is a worrying question. As well as Risen, another journalist is currently facing the possibility of imprisonment if he refuses to name a source.
It is Joe Hosey, the editor of the Illinois-based news website Joliet Patch, who was given 21 days by a judge on 31 August to name the person who gave him police and autopsy reports in the investigation into a double murder. The deadline expires tomorrow.