http://thecaucus.blogs.nytimes.com/2009/10/30/shield-law-compromise-would-protect-reporters-bloggers/

October 30, 2009

Shield Law Compromise Would Protect Reporters and Bloggers

By CHARLIE SAVAGE

The Obama administration and key Democrats have reached a tentative agreement on a proposed law to provide greater protections to reporters against being fined or imprisoned if they refuse to identify confidential sources.

Under the proposed agreement, a so-called media shield law would allow federal judges to quash subpoenas against reporters if they determine that the public interest in the news outweighed the government's need to uncover the leaker -- including, in some circumstances, disclosures of classified national security information.

The proposal would also extend coverage to unpaid bloggers engaged in gathering and disseminating news information.

It's too early to say if a package like this can pass Congress. Prospects for a shield law had dimmed significantly in September, when the administration -- after intelligence agencies and prosecutors expressed concerns -- had taken a harder line against protections for reporters in national-security-related leak cases.

A leading proponent of the legislation, Senator Charles E. Schumer, Democrat of New York, expressed confidence that the tentative agreement would move quickly through the Senate Judiciary Committee, where it had stalled, and the full Senate.

"We've come a long way in these negotiations and have now reached a compromise that strikes the right balance between national security concerns and the public's right to know," Mr. Schumer said in a statement. "This new version preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens."

The shield law would also apply when the F.B.I. wants to subpoena third-party records, tracking phone calls and e-mail to find out who had been talking to a reporter.

The compromise, which was worked out in the past two weeks, could still falter if press interests object to certain concessions made to prosecutors. A phone call with about 100 media decision-makers was scheduled to discuss the proposal at 3 p.m. on Friday.

"This is a huge deal, but it's not a done deal, and quite honestly, until all of the media coalition members sign off on it, it's not a deal," said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press.

About three dozen states have some form of a reporter-shield law. Proponents of creating a federal version argue that it is in the public interest to allow reporters to protect confidential sources in order to bring important information to light.

Opponents note that the unauthorized disclosure of classified or criminal information is illegal and argue that members of the news media should not be allowed to decide whether exposing national security secrets is justified or receive special privileges.

Under the tentative deal, reporters would receive different levels of protection from subpoenas, depending on the type of case involved.

In civil cases, the litigant seeking to subpoena a reporter would first have to exhaust all other means of obtaining the information. Even after that, the judge would still apply a balancing test, and the onus would be on the seeker of the information to prove why the need for testimony outweighed the public's interest in news gathering.

Ordinary criminal cases -- like federal prosecutors' effort to find out who leaked grand jury information about steroid use by baseball players and other professional athletes to The San Francisco Chronicle -- would work in roughly the same way. But the burden would be on the reporter to show why there is clear and convincing evidence that prosecutors should not get the testimony they are seeking.

Under the agreement, there would be some exceptions to the balancing test allowing such judicial review of subpoenas to reporters, however. No such test would apply if prosecutors could show that forcing the reporter to identify a source would help prevent or mitigate a future terrorist attack or other future acts that are "likely to cause significant and articulable harm to national security."

Judges would be instructed to be deferential to prosecutors when they put forth specific facts indicating that such an exception should apply. However, the mere fear that a source might leak something else that is classified in the future would not, by itself, be enough to trigger that exception.

Judges could use a similar balancing test in most national-security leak cases, such as the government's efforts to find out who leaked information to The New York Times about the Bush administration's program of surveillance without warrants.

If such a law were enacted, it would not necessarily mean that reporters could escape being fined or jailed for failing to testify. Media advocates say that under the legal standard in the proposal, it would be a daunting challenge to convince a judge that it was in the public interest to block a subpoena. However, they say, it would give reporters a shot that they currently do not have.

Senator Arlen Specter, Democrat of Pennsylvania, hailed the deal as a major breakthrough. He noted that President Obama had co-sponsored similar legislation when he was still in the Senate, and praised the White House for moderating its position to allow greater judicial review of what executive branch officials want to do.

"One of the big problems present today in so many aspects of our national security is that the executive branch has unilateral say and the courts cannot review it, and that is a very sharp attack on separation of powers," said Mr. Specter, who has been pushing a version of a reporter shield bill for several years.

The shield law would not cover reporters' unpublished interview notes with a criminal suspect or certain other kinds of working records. There would also be no protection against identifying the perpetrator of an act of terrorism, if the reporter knows who it is.

Still, Mr. Specter said, if the deal goes through and becomes law, it would not only stop most jailings and fines for reporters who refused to identify sources, but also "the intimidation, the threats that are going around the country every day."

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