A Shield Law is a law which “provides statutory protection for the ‘reporters’ privilege’— legal rules which protect journalists against the government requiring them to reveal confidential sources or other information.”[1] Generally, this is a positive occurrence as journalists are much more able to conduct their work and bring information to public light if they do not need to worry about having to reveal their sources. While Shield Laws have occurred in the past, they have only been on the state level. This currently proposed Shield Law is the first one to reach the federal level and the main goal is to protect journalists from having to reveal confidential sources in federal cases.[2]
However, there are certain instances in which journalists will have to reveal sources, such as “(1) The party seeking disclosure has exhausted all reasonable alternative sources of the information; (2) The requested information is essential to resolving the matter; (3) Disclosure of the requested information would not be contrary to the public interest; and (4) In criminal cases, if the requesting party is the federal government, the government must show that there are reasonable grounds to believe that a crime has occurred.”[3]
While overall it may seem like a good bill, there are a number of problems with this Shield Law, officially known as the Free Flow of Information Act of 2013. For starters, this law would “allow the government to seize reporters’ records without notifying them for 45 days – a period of time that could be renewed by a judge 45 additional days – if investigators convince a judge pre-notification ‘would pose a clear and substantial threat to the integrity of a criminal investigation.’”[4] This power of seizing records without notifying reporters was used most recently in regards to the Associated Press, when the federal government seized their phone records in May of last year, with the government only saying that “they were needed for investigation of an unspecified criminal matter.”[5] Oh yes! What transparency and accountability! Infringing upon the First Amendment rights of reporters and then only giving what is essentially a BS, purposefully vague explanation.
In addition to this, the government can force journalists to give up information in the name of national security.[6] This is quite worrying as the US government has time and time again been involved in operations of entrapment.[7,8] Due to this, they could potentially have a scenario where they create a case of entrapment, label it terrorism, and then force all journalists to give up information on any and all sources as well as seize their records under the guise of national security.
Yet in this current bill, not only can the government continue to engage in the above behavior, but they are also defining who is and who is not a journalist. Initially, the bill defined a journalist as “a person who has a ‘primary intent to investigate events and procure material’ in order to inform the public by regularly gathering information through interviews and observations” and added the stipulation that “The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.”[9] This seems to be rather fine as it would include mainstream and independent journalists. However, the situation became problematic when in September 2013, an amendment to the bill was proposed that- let’s just say- ‘more clearly’ defined who and who was not a journalist.
Kevin Gostolza of Firedoglake discussed this amendment last year and it would be appropriate to quote him now at some length:
A “covered journalist,” under the amendment, would be the following: an employee, independent contractor, or agent of an entity or service that disseminates news or information by means of newspaper; nonfiction book; wire service; news agency; news website, mobile application or other news or information service (whether distributed digitally or other wise); news program; magazine or other periodical, whether in print, electronic, or other format; or through television or radio broadcast, multichannel video programming distributor (as such term is defined in section 602(13) of the Communications Act of 1934 (47 U.S.C. 522(13)), or motion picture for public showing… That person must also have the “primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest.” Or, that person should be engaged in the “regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on such matters.” A person would also qualify as a “covered journalist” if they had experience in journalism and had “substantially contributed, as an author, editor, photographer, or producer, to a significant number of articles, stories, programs, or publications” in the past twenty years. As Feinstein said, it would “cover a legitimate journalist such as a Dan Rather who leaves his media entity and takes to publishing freelance stories on the web.”[10] (emphasis added)
Now, let’s begin to take those paragraphs apart and analyze them, bit by bit.
In the first paragraph, the law defines a journalist as “an employee, independent contractor, or agent of an entity or service that disseminates news or information” and then goes on to define the many mediums by which the news can be disseminated. Some of this language seems to be problematic. What exactly do they mean by “independent contractor?” Do they mean a freelancer? Do they mean someone like myself who researches and writes independently?"
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