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Senate Judiciary Passes Shield Law

The Senate Judiciary Committee Thursday voted to approve the Free Flow of Information Act, which Congress is taking up once again, this time in the shadow of the NSA information-gathering revelation, attendant WikiLeaks government data drops and Justice's subpoenas of reporter phone records.

Passage came after some hot debate over issues including protecting leakers of classified information and who qualified as a covered journalist.

The Free Flow of Information Act (S.987) is a federal shield law--the majority of states already have their own shield laws--that would protect reporters from being forced to identify sources by overzealous government officials, with carveouts for national security, imminent threat of death or bodily harm, destruction of critical infrastructure, and other special circumstances. The bill also covers government efforts to obtain information from ISPs.

Similar bills have been introduced and debated in the House and Senate Judiciary committees for years, and at least twice passed the House before being stalled in the Senate.

In his opening statement for a Thursday business meeting in the committee where S. 987 was on the agenda, ranking member Charles Grassley (R-Iowa), said it was important to have a "thorough debate" on the bill. He got it.

The debate featured familiar divisions over whether "citizen" journalists or only those employed by a news organization should be covered and whether the legislation was too protective of leakers and gave judges too much authority to overrule government determinations of what information was a threat to national security.

Rep. Jeff Sessions (R-Ala.) was arguably the strongest critic of the bill, saying there was no demand that the bill pass and that it would protect news organizations that represent foreign interests with ideologies directly contrary to those of the U.S.

Sessions proposed an amendment that would exclude any leak of classified information by preventing a judge from giving immunity to those who participate in a classified breach and reporters who don't identify the leaker. Judiciary Committee Chairman Patrick Leahy (D-Vt.) said that would essentially "shatter" whistleblower laws.

Bill backer Sen. Chuck Schumer (D-NY) pointed out there was an exception for national security. The amendment was not approved.

The bill was amended to make it clear that a journalist meant someone employed by a news organization or in the businesses of reporting news, though it also includes student journalists. The amendemnt changed "person" to "journalist" and provided a detailed definition of what "journalist" means.

Rep. John Conyers (D-Mich.), ranking member of the House Judiciary Committee, introduced a House version of the bill in the wake of the DOJ subpoena of reporter phone records.

"This was a monumental step toward protecting journalists from overly aggressive federal agencies who would bankrupt or jail journalists for just doing their jobs," said David Cuillier, president of SPJ, in a statement. "Now I hope the Senate and House approve the bill so journalists report without threat of prison."

He pointed out that the new definition of covered entity, which SPJ backed, would include "freelancers, college journalists, bloggers and people disseminating information for the public good on news websites."

John Eggerton
John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.