By Walter Pincus
Monday, October 8, 2007
The Free Flow of Information Act of 2007 is the grand title attached to the bill that passed the Senate Judiciary Committee last week with bipartisan support. It is better known as the reporter's shield law.
While the proposal has progressed much further in Congress than past efforts, it is far from a sure thing and continues to draw opposition, at least in its current form, from the Justice Department and the Office of the Director of National Intelligence (DNI).
One of the biggest issues is just who is a journalist, or in the phrase the bill uses, a "covered person." Once that definition is clarified -- and even Judiciary members say it's not settled -- a journalist would under most circumstances not have to disclose to federal authorities or in civil lawsuits the identity of sources who have been promised confidentiality. Also protected will be records, communications, documents or other information that this "covered person" receives from confidential sources, as well as notes the journalist makes of conversations with these sources.
The Senate committee bill employs a broad definition: A "covered person" is someone "engaged in journalism," which itself is defined as "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." That would cover those working for major news organizations as well as individuals putting out their own blogs or newsletters.
What the Senate bill also includes, though, is a list of who is not a covered person. Here the committee tried to block anyone associated with terrorism from claiming to be a "covered person," having in mind criticism of the bill made in a Washington Post op-ed last week by U.S. Attorney Patrick J. Fitzgerald, special prosecutor in the Valerie Plame case. Fitzgerald suggested that "charity" groups that raise money for terrorists, Iraqi spies working under journalist cover, or criminal gangs running a radio station all could qualify.
The committee decided that the bill would not cover anyone who is "an agent of a foreign power" as newly defined in recent amendments to the Foreign Intelligence Surveillance Act. Committee staff members said this could include journalists working for the news network al-Jazeera, owned by the government of Qatar; publications run by Hezbollah, the Lebanese political party; and even the BBC or other news organizations owned by governments. The new FISA definitions also include as agents of a foreign power anyone who "is reasonably expected to possess, control, transmit or receive foreign intelligence information while such person is in the United States."
The bill also would not cover anyone who, because of past actions, is excluded from participating in federal grants, aid, or procurement or nonprocurement activities.
The bill would not exempt from federal subpoena or civil court subpoena a "covered person" who personally witnessed an alleged crime, nor would it permit the holding back of physical evidence or film, tape or audio recordings of such an alleged criminal event.
There would be protection for a journalist if, as the approved bill reads, the "alleged criminal or tortuous conduct is the act of communicating the documents or information at issue" to the "covered person."
That was the substance of the Plame case, where the very act of passing her identity as a CIA officer, which was classified information at the time, to a journalist was a potential violation of law.
In the proposed bill, the government would have to prove "by the preponderance of the evidence" that disclosure of classified information, such as Plame's name, "has caused significant and articulable harm to the national security" and that "nondisclosure" of the source's identity "would be contrary to the public interest," balancing that against the "public interest in gathering news and maintaining the free flow of information."
This is a provision that has drawn Justice and DNI opposition.
National security and intelligence reporter Walter Pincus pores over the speeches, reports, transcripts and other documents that flood Washington and every week uncovers the fine print that rarely makes headlines -- but should. If you have any items that fit the bill, please send them firstname.lastname@example.org.