WASHINGTON – A Senate panel on Thursday approved legislation designed to protect reporters and the news media from having to reveal their confidential sources after narrowing the definition of a journalist and establishing which formats — traditional and online — provide news to people worldwide.
On a 13-5 vote, the Judiciary Committee cleared the way for the full Senate to consider the measure. The vote came just months after the disclosure that the Justice Department had secretly subpoenaed almost two months' worth of telephone records for 21 phone lines used by reporters and editors for The Associated Press and secretly used a search warrant to obtain some emails of a Fox News journalist.
The Justice Department took the actions in looking into leaks of classified information to the news organizations. The AP received no advance warning of the subpoena.
"One of the things that protect democracy is the free flow of information," said Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, who mentioned his own connection to journalism. Leahy's parents, Alba and Howard, published a weekly newspaper before selling it and starting a printing business.
Criticism of the collection of the phone records and other material without any notice to the news organizations prompted President Barack Obama to order Attorney General Eric Holder to review the department's policy. The bill would incorporate many of the changes proposed by Holder in July, including giving advance notice to the news media of a subpoena.
In a July 29 letter to Leahy, Holder said the measure "strikes a careful balance between safeguarding the freedom of the press and ensuring our nation's security."
In a broadside against the Obama administration, Sen. John Cornyn, R-Texas, said the legislation was merely a diversion by the White House. It was introduced three days after word emerged about the secret subpoenas of the AP records.
"A new law is not what we need," Cornyn said. "We find ourselves here because of the abuses of the attorney general."
A point of dispute was the definition of a journalist.
The original bill would have extended protections to a "covered person" who investigates events and obtains material to disseminate news and information to the public. Sen. Chuck Schumer, D-N.Y., a chief proponent of the medial shield legislation, worked with Sens. Dianne Feinstein, D-Calif., and Dick Durbin, D-Ill., as well as representatives from news organizations, on a compromise.
The protections would apply to "covered journalist," defined as an employee, independent contractor or agent of an entity that disseminates news or information. The individual would have to have been employed for one year within the last 20 or three months within the last five years.
It would apply to student journalists or someone with a considerable amount of freelance work in the last five years. A federal judge also would have the discretion to declare an individual a "covered journalist," who would be granted the privileges of the law.
The compromise also says that information is only privileged if it is disseminated by a news medium, described as "newspaper, nonfiction book, wire service, news agency, news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program, magazine or other periodical, whether in print, electronic or other format; or thorough television or radio broadcast ... or motion picture for public showing."
While the definition covers traditional and online media, it draws the line at posts on Twitter, blogs or social media from non-journalists.
The overall bill would protect reporters and news media organizations from being required to reveal the identities of confidential sources, but it does not grant an absolute privilege to journalists.
"It's Kevlar, not kryptonite," Schumer said.
Sen. Jeff Sessions, R-Ala., complained that the definition of a journalist was too broad. Pushing back, Feinstein said the intent was to set up a test to determine a bona fide journalist.
"I think journalism has a certain tradecraft," Feinstein said. "It's a profession. I recognize that everyone can think they're a journalist."
In a moment of levity at the two-hour plus hearing, Sen. Chuck Grassley, R-Iowa, remarked that the legislation "will not shield me when I use Twitter."
Quipped Leahy, "Nothing shields us from our mistakes, Chuck."
The panel approved the compromise on a 13-5 vote.
Holder's revised guidelines called for the government to give advance notice to the news media about subpoena requests for reporters' phone records unless the attorney general determines such notice would pose a clear and substantial threat to the investigation. Search warrants for a reporter's email would apply only when the individual is the focus of a criminal investigation for conduct not connected to ordinary newsgathering.
The bill makes clear that before the government asks a news organization to divulge sources, it first must go to a judge, who would supervise any subpoenas or court orders for information. Such orders would be limited, if possible, "in purpose, subject matter and period of time covered so as to avoid compelling disclosure of peripheral, nonessential or speculative information."
In the July 29 letter to Leahy, Holder said the proposed bill establishes "an important procedural framework" for judicial review. Holder's revised guidelines call for a new standing News Media Review Committee to advise the attorney general in advance on requests to divulge sources.
Reporters must be notified within 45 days of a request, a period that could be extended another 45 days but no more
In the AP story that triggered one of the leak probes, the news organization reported that U.S. intelligence had learned that al-Qaida's Yemen branch hoped to launch a spectacular attack using a new, nearly undetectable bomb aboard a U.S.-bound airliner around the anniversary of Osama bin Laden's death.
In the Fox News story, reporter James Rosen reported that U.S. intelligence officials had warned Obama and senior U.S. officials that North Korea would respond to a U.N. Security Council resolution condemning nuclear tests with another nuclear test.