WASHINGTON, D.C. - Following the Justice Department's decision to subpoena the phone records of reporters from the Associated Press, U.S. Sen. Charles E. Schumer, D-N.Y., said he will reintroduce his media shield bill that offers legal protections to journalists engaged in newsgathering activities.
The bill was endorsed by both the Obama administration and the newspaper industry after lengthy negotiations led by Schumer in 2009.
While it is unclear whether the bill would changed the outcome in the AP phone records case since a national security exception may have applied, the bill would have set up a legal process for approving the subpoenas that would guarantee consideration of the public's interest in protecting the freedom of the press. Prosecutors would have to convince a judge that the information at issue would "prevent or mitigate an act of terrorism or harm to national security." The bill would also have compelled concurrent notice of the subpoena to the AP unless law enforcement could convince a court that special circumstances warranted a delay in the disclosure.
"This kind of law would balance national security needs against the public's right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case," Schumer said.
The bill was last considered by the Senate Judiciary Committee in 2009, when it passed 14-5. The bill was cosponsored at the time by Republicans such as Senator Lindsey Graham, Senator Johnny Isakson and former Senator Richard Lugar.
The bill protects journalists and their employers from having to reveal information, including source identity, that a reporter obtains under a promise of confidentiality and in the course of carrying out newsgathering functions. It establishes a legal framework for determining the limited circumstances under which such protected information can be subject to compelled disclosure in court. It does not provide an absolute privilege for journalists. In every case, a group, typically the government, will have to argue to a court its need for the information at issue.
Schumer's bill requires, in most cases, a court to apply a balancing test before compelling disclosure, such as public interest in disclosure versus public interest in newsgathering. It lists exceptions when the journalist has no privilege against the disclosure of information, such as classified leak cases when information would prevent or mitigate an act of terrorism or harm to national security; regular confidential information cases when information would prevent or mitigate, or identify a perpetrator of, an act of terrorism or harm to national security; and in non-national security cases when the information would prevent or mitigate death, kidnapping, and bodily harm or when information was obtained by the journalist through observation or perpetration of a criminal act other than an act of leaking.