I've been tracking the progress of the Free Flow of Information Act of 2007 for months. Having spent time in a federal prison for protecting my source material, it's natural that I would be interested in a law that would prevent others from enduring this same fate.
The last time I wrote about the bill's status was in August, after it cleared the House Judiciary Committee. Last week, the Senate Judiciary Committee followed suit, and both houses of Congress are now ready to vote on the law.
While this is very exciting news for many journalists, I'm less than ecstatic, given that neither the version of the bill is ideal, and there is no telling how the two bills will be combined, should it pass both houses.
While the amended version of the House bill seeks to tie journalism to an economic exchange, the Senate's definition is broader in scope and would not only protect professionals but would likely apply to students and many bloggers as well.
Scott M. Fulton III points out in BetaNews:
The Free Flow of Information Act doesn't even use the word "journalist." Instead, it refers to a person covered by protections of the act and defines that person as someone engaged in journalism. It then defines "journalism" as "the regular 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."
The House bill establishes a qualified protection for a reporter's unpublished information, but the version to be voted on by the Senate extends only to situations involving an explicit promise of confidentiality with an anonymous source. Walter Pincus writes today in The Washington Post, "The bill would not exempt from federal subpoena or civil-court subpoena a 'covered person' who personally witnessed an alleged crime, nor would it permit the holding back of physical evidence or film, tape or audio recordings of such an alleged criminal event."
Although these subtle distinctions between the two bills may seem petty, the grim reality is that I would've been protected from having to turn over my raw materials, were the House bill to be made law, but the Senate bill would've provided absolutely no protection.
As Amy Goodman has stated on several occasions, journalists are "the fourth estate, not for the state," and it is vital that Congress pass a law that will prevent the Justice Department from relying on the press to do its investigative work.
There are other concerns as well. In Pincus' article, he outlines an issue that's identical in both the House and Senate versions of the bill but has not necessarily been clarified by the courts:
The committee decided that the bill would not cover anyone who is "an agent of a foreign power," as newly defined in recent amendments to the Foreign Intelligence Surveillance Act. Committee staff members said this could include journalists working for the news network Al Jazeera (International), owned by the government of Qatar; publications run by Hezbollah, the Lebanese political party; and even the BBC or other news organizations owned by governments. The new FISA definitions also include as agents of a foreign power anyone who "is reasonably expected to possess, control, transmit or receive foreign intelligence information while such (a) person is in the United States."
Should both bills pass, the Free Flow of Information Act of 2007 may eventually become law, but before President Bush is given the opportunity to sign on the dotted line, the two bills will need to be combined into one. With glaring weaknesses plaguing the bill in both houses, I'm quite fearful that the final law will be woefully insufficient.
Are we better off with a weak law that doesn't protect students or unpaid bloggers? Should we support a law that allows the government to force our press to act as investigators for the prosecution? I'm inclined to say no, but the promise of making even limited progress is so seductive to many journalists that it seems that I may be in the minority.
With luck, the two bills will combine in a way that eliminates the limitations facing both versions, and will create a robust and comprehensive shield law. Unfortunately, this optimistic projection does not appear likely, and I may soon find myself in the unenviable position of opposing a law that is needed now more than ever.