http://www.nytimes.com/2009/10/31/us/politics/31shield.html

October 31, 2009

Deal in Senate on Protecting News Sources

By CHARLIE SAVAGE

WASHINGTON -- The Obama administration, leading Senate Democrats and a coalition of news organizations have reached tentative agreement on legislation providing greater protections against the fining or imprisonment of reporters who refuse to identify confidential sources.

Under the deal, made public Friday, federal judges could quash subpoenas demanding testimony or information from reporters if the judges determined that the public interest in news gathering outweighed the need to uncover the source of a leak, including, in some circumstances, unauthorized disclosure of classified government information.

Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.

A version of shield legislation was approved by the House in March. But a similar bill has stalled in the Senate, and its prospects appeared to dim significantly in September when the administration, responding to apprehension expressed by intelligence agencies and prosecutors, took a harder line with regard to cases in which the government could claim national security concerns.

With the new agreement, however, the White House has now moderated that position.

"We expect this proposal to move forward with bipartisan support, and the president looks forward to signing it into law," said Ben LaBolt, a White House spokesman, who noted that the Obama administration was "the first administration in history to support media shield legislation."

The protection would apply not only against subpoenas for reporters' testimony or information but also against investigative efforts to obtain phone and Internet records to find out who had been talking with them.

Under the agreement, the scope of protection for reporters seeking to shield the identities of confidential sources would vary according to the nature of the case: civil, criminal or national security.

In civil cases, the litigants seeking to force reporters to testify would first have to exhaust all other means of obtaining the information. Even then, the judge would apply a "balancing test," and the burden would be on the information seekers to show by a "preponderance of the evidence" why their need for the testimony outweighed the public's interest in news gathering.

Ordinary criminal cases, as in prosecutors' effort to find out who leaked grand jury information about professional athletes' steroid use to The San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors. For a judge to quash a subpoena, the burden would be on a reporter to make it "clear and convincing" that the public interest in the free flow of information should prevail.

Most cases involving disclosure of classified information would work the same way as criminal cases. But judges could not quash a subpoena through a balancing test if prosecutors showed that the information sought would help to prevent or mitigate a future terrorist attack or other acts that are "likely to cause significant and articulable harm to national security."

On the other hand, the prospect that a confidential source might, in the future, disclose something else that is classified would not be enough to bring about that exception.

The compromise grants no protection against a reporter's being required to disclose the identity of someone who has engaged in an act of terrorism. Nor does it cover nonconfidential information, like unpublished interview notes or news footage that has not been televised, which are often the object of subpoenas. The House version of the shield bill would protect such material, and abandoning that provision was a chief concession of the bill's Senate sponsors and news organizations.

"There was compromise on both sides," said Paul J. Boyle, senior vice president for public policy at the Newspaper Association of America.
Along with most other major news organizations, The New York Times Company supports the agreement, said George H. Freeman, vice president and assistant general counsel.

Mr. Freeman emphasized that even if the agreement became law, reporters would face a "daunting" standard to avoid disclosing sources.

"But at least we could explain to a judge why it is in the public interest that we have published stories," he said, "and therefore we would have a shot at protecting our confidential sources."

The leading proponents of the legislation, Senators Charles E. Schumer of New York and Arlen Specter of Pennsylvania, both Democrats, expressed confidence that the compromise would move quickly through the Senate.

"We still get most of our information from investigative journalists," Mr. Specter said. "If you can't protect sources, there is a lot of public corruption and private malfeasance that will go undetected and unpunished."

In a recent call for action on shield legislation, Mr. Specter said that since 2001 at least 19 journalists had been subpoenaed by federal prosecutors for information about confidential sources and that four had been imprisoned for refusing to comply.

About three dozen states already have some form of shield law. Proponents argue that it is in the public interest to allow reporters to protect confidential sources, in order to bring important information to light. Opponents argue that news organizations should not have special privileges or be allowed to decide on their own whether exposing secrets is justified.