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Is Shield Law the Next Wiki Leaks Victim?

A federal shield law may have just gotten a lot tougher to get through Congress in the wake of the latest WikiLeak, though one of the bill’s principal supporters says that shouldn’t be the case.

One of the hang-ups about the bill, which would give limited immunity to journalists from federal subpoenas, for some legislators from both sides of the aisle was the definition of covered journalists and whether that extended to blogs and other online news/data gathering, specifically to WikiLeaks.

Sen. Chuck Schumer (D-N.Y.), for one, wanted to make it clear that the law would not protect sites like WikiLeaks after it leaked documents earlier in the summer about the Afghan war. With the leaks of diplomatic cables last week by WikiLeaks, nailing down that definition even more explicitly before a shield law bill passes is likely to take on added weight.

The bill already has carve-outs for national security and gives a judge the power to decide when the shield can be extended and when it can’t. But the definition of “journalist” already helped sidetrack what journalism organizations saw as the best chance to get a federal shield law after decades of failed attempts.

Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, which has been pushing hard for the shield, says last week’s events will make it tougher for passage, though she says the bill already would not cover “data drop” sites like WikiLeaks. John Eggerton, B&C Washington bureau chief, spoke with Dalglish about the bill’s prospects:

Does this latest WikiLeaks of confidential diplomatic cable make it any harder for the shield law to pass?
Yes, in some quarters.

Is there any chance for passage in the lame-duck session?
I think so, but given the posture we are in right now, it would have to be appended to something else. Right now there are probably a thousand bills that are hanging out there that sponsors are trying to get appended to a piece of legislation that actually has to move before the end of this session.

What is the current status of the bill?
It is sitting in the Senate. Judiciary has adopted it, and the clock is ticking.

Has it been amended to explicitly exclude WikiLeaks?
I have seen some language floated, but there has not been an amendment introduced. But there’s nothing to stop Schumer from trying to persuade [Majority Leader] Harry Reid to take up this bill and say, “And by the way, when I introduce it I am going to amend it and put this WikiLeaks language on it.” Whether there is time to get all that accomplished, I don’t know.

Do you support a carve-out for WikiLeaks?
The way this is written in both the House and Senate version, there is no way WikiLeaks would be protected. The rumblings I have been hearing is that the new proposed amendment is: “By the way, in case it wasn’t absolutely 100% clear, we mean WikiLeaks is covered by this too, in case you didn’t get it.” It is sort of like double, super-secret probation kind of stuff. There is no way on Earth that these data dumps would be subject to protection under either the House or Senate version of the bill, which is what makes it so frustrating because this information would not be protectable. This source would not be protectable. But a lot of people who I think are not inclined to use the shield law are using this as an excuse. I would argue that the longer you don’t have a shield law, the more likely you are to have massive data dumps done by groups who are far less careful than actual journalists are.

Your argument being that...?
If a journalist can protect a source, the journalist is going to actually do journalism with this information as opposed to: “Well, let’s just take a bunch of documents and dump them out there.”

But if there is specific WikiLeaks carve-out language, would you support it?
Yes, I think it is stupid and unnecessary, but would I support it, yes, because I think it is excluded under the language currently adopted by the Senate Judiciary Committee.

Has the administration brought any of this on itself, with its emphasis on openness and transparency in government?

No, that is a totally different kind of information. They have not in any way, shape or form said anything about being transparent about national security information. In fact, the opposite is true. They have been more aggressive than many of the recent administrations [in] identifying leakers. What they have not been doing as much is going after reporters. But they are making a lot of effort at who the leakers are and to shut them down. National Security Information is a complete exception to their transparency rule.

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