Update 3:10 p.m. PDT: Despite veto threats from the Bush administration, the House of Representatives on Tuesday approved a bill that would shield journalists--and some bloggers--from being forced to reveal confidential sources in federal cases.
By a 398-21 vote, the politicians backed an amended version of the Free Flow of Information Act. Sponsored by Reps. Rick Boucher (D-Va.) and Mike Pence (R-Ind.), the proposal offers a "qualified" privilege to anyone engaged in journalism, which it defines as "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."
But beware, "casual" bloggers: The privilege isn't meant to apply to you, the bill's sponsors say.
So how do they define "casual"? The politicians unanimously agreed to adopt an amendment (click for PDF) that specifies the person engaged in journalism must do so "regularly" and derive "a substantial portion of the person's livelihood" or "substantial financial gain" from the practice. (It would presumably be up to a court to sort out what exactly constitutes "substantial" and "regularly.")
And in case there was any doubt, the amendment specifies that terrorists or members of terrorist organizations, as designated by federal law, don't qualify for any privileges afforded by the bill either.
And even for those who qualify, the privilege is not without numerous exceptions, as CNET Blog Network contributor Josh Wolf detailed earlier Tuesday. Many of the carveouts deal with issues related to national security or serious criminal investigations, while others seek to protect unauthorized disclosure of trade secrets or other sensitive personal information.
Before the vote, members from both parties spoke in favor of the bill, which is endorsed by a number of major media organizations.
"Freedom of the press protected by the First Amendment has been a cornerstone of our democracy, one that we cherish and promote around the world," House Speaker Nancy Pelosi said in a brief speech before the vote. "The essential work of the press has been severely hampered by a lack of federal standard."
A handful of prominent republicans, including House Judiciary Committee ranking member Lamar Smith (R-Texas) and House Homeland Security Committee ranking member Pete King (R-N.Y.), repeatedly attacked the proposal, pointing to strong reservations voiced by the Bush administration.
The White House, Justice Department and intelligence community strongly oppose the bill because they argue it's broad enough to undermine their crime-fighting and antiterrorism efforts. The president's advisers have recommended he veto it, should it pass, Smith said.
"If the media shield bill passes, we'll be carving out a special exception to that rule for reporters, tabloids and bloggers," said Smith, who professed to having "sympathy" for the press after a two-year stint as a newspaper reporter when he was younger. "This is not what our founders intended when they created a free press. No one should be above the law, not even the press."
The idea of a reporter's privilege is hardly new, and 49 states and the District of Columbia currently have some form of reporter's privilege on their books. But King questioned why a federal rule is necessary, citing the Department of Justice's statement that it has only issued 19 subpoenas to reporters since 1991.
"Some of the people who hide behind the shield of journalism today routinely release classified national security info as if it were their duty," he said before the vote, later adding: "People should not be protected...just because they gave the information to a reporter or blogger, not someone else."
Rep. John Conyers (D-Mich.), who supports the bill, said the balance struck by the bill is appropriate. "If the exceptions were any broader," he said, "it would swallow up the rule itself."
On the Senate side, the Judiciary Committee has approved a similar--but not identical --version. All veto threats aside, for the bill to become law, the full Senate would have to approve a bill and reconcile any differences with the House.
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. ... Read more
Anyone regularly engaged in "journalism," which would seem to include some bloggers, wouldn't generally be forced to divulge confidential sources in federal cases under a bill approved Thursday by a U.S. Senate committee.
By a 15-2 vote, the U.S. Senate Judiciary Committee backed an amended version of the so-called Free Flow of Information Act. Sens. Sam Brownback (R-Kansas) and Jon Kyl (R-Ariz.) cast the "no" votes.
Some form of "reporter's privilege," either through laws or court decisions, already exists in 49 states and the District of Columbia. This bill would extend that protection to federal cases, shielding anyone engaged in the practice of "journalism"--with a number of exceptions, naturally--from being forced to give up confidential information or provide testimony.
The term "journalism" clearly would sweep up at least some bloggers because the bill defines it thusly: "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."
That broad definition still gives some politicians heartburn. At Thursday's meeting, three members of the Senate committee--Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.) and John Cornyn (R-Texas)--said they worried about giving protection to bloggers who aren't generally expected to adhere to the same code of conduct and ethics as professional journalists, according to a Senate aide familiar with the debate. But they didn't propose any different language at the time, opting instead to work with the bill's primary sponsors to craft tweaks before the bill hits the Senate floor.
Although it's unclear how the final language will shake out, it could end up resembling the approach taken by a House of Representatives panel when it backed a similar bill in August. That bill's authors said they planned to add a condition restricting the reporter's privilege only to those who derive "financial gain or livelihood" from the practice of journalism. (Granted, it's relatively easy and inexpensive to slap advertisements on blogs and qualify for the privilege, so some politicians weren't impressed by that amendment.)
Enactment of either bill into law is hardly assured. Lingering opposition from the Bush administration means a new round of conflict likely looms if the measure advances to the Senate floor. The Justice Department has argued that the language is far too broad and could endanger national security and criminal investigations. A Thursday Washington Post op-ed by U.S. attorney Patrick Fitzgerald claims the bill would unwittingly protect Iraqi spies posing as journalists and child pornographers who swapped information via the Internet. (Fitzgerald did, however, seem to indicate that some "newspapers and bloggers" would deserve the safeguards.)
One amendment to the Senate bill approved Thursday would exclude known terrorists or agents of foreign powers from the category of journalist in an attempt to address the DOJ's concerns. But beyond that, there weren't any attempts to narrow the scope of who would be protected.
And, of course, neither bill is without a lengthy list of exceptions to the privileges, which many major news organizations have deemed an appropriate balance. The Senate version would permit forced disclosure of information in cases where there's reason to believe a crime has occurred; where the information sought is "essential" to the investigation, defense or prosecution; or where unauthorized revelations of information have caused--or will cause--"significant and articulable harm to the national security." If the information is necessary in cases involving kidnapping, death, "substantial bodily harm" or terrorism against the United States, among other things, it would also be fair game.
In response to concerns raised by the Bush administration and other politicians, the revised bill attempts to exclude the "casual blogger" from reaping those benefits by stipulating the protections apply only to those who derive "financial gain or livelihood" from the journalistic activity, Boucher said Wednesday. That broad rule could, however, include part-time writers who receive even a trickle of revenue from Google Ads or Blogads.com.
While the revised form of the law is not perfect, it does appear to offer a level of protection against Justice Department inquiries that doesn't currently exist. Although 33 states have some form of shield law, these protections do not apply in a federal context and several U.S. journalists have found themselves imprisoned in recent years as a result.
... Read moreWASHINGTON--A congressional committee debate over whether to immunize journalists--including some bloggers--from revealing confidential sources has been raging on-and-off here for more than an hour, with a final vote on the bill likely to occur this afternoon.
Members of the U.S. House of Representatives Judiciary Committee have just fled their meeting room yet again to tend to votes on the House floor, interrupting the back-and-forth over the so-called Free Flow of Information Act for a second time. Their meeting, which also counted a number of other bills on the agenda, began around 7:15 a.m. PDT.
So far, politicians have been airing a number of gripes about the language in the so-called "reporter's shield" bill, whose approach is supported by major news organizations but opposed by the Bush Administration and some members of Congress. One major issue that still looms large is the extent to which bloggers should be eligible for protection.
Rep. Rick Boucher (D-Va.), one of the bill's chief sponsors, has proposed an amendment on Wednesday that attempts to restrict the privilege to those who do journalistic activities "for financial gain or livelihood." But in this age of Google ads and readily available blogging tools, a number of politicians have been questioning whether that distinction makes any difference. They're concerned that anyone could throw up a blog and qualify for the immunity--which, of course, is not absolute and would be subject to a number of exceptions under the bill.
Update: Click here for the full story.
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