A Shield Law for The World

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By Miklós Haraszti
Wednesday, June 4, 2008

VIENNA -- The United States owes a federal shield law not only to American journalists but to journalists around the world. Passage of such a law is urgently needed. By finally allowing the media to protect the anonymity of confidential sources, Congress would do more than close a fissure in U.S. press freedoms: It would also help curtail the destructive behavior that current U.S. prosecutorial habits are inspiring globally.

Under the past several attorneys general, the unimaginable has happened in the United States despite the protections of the First Amendment: American journalists have been jailed for sticking to the basic ethics of their profession. In high- and low-profile cases, prosecutors have coerced journalists into breaking promises of confidentiality they had given to their sources -- or have gotten them jailed for being in "contempt of court."

This backpedaling in press freedom has allowed foreign governments to claim a double standard in the U.S. approach -- and then engage in such behavior themselves. They noticed how prosecutors exploit the lack of a federal-level shield law in a nation where all states but one have already granted confidentiality protection to journalists through laws or court decisions. And they spotted the gap between the way press freedom is treated at home, by the Justice Department, and promoted abroad, by the State Department.

More is at stake than a shield for the United States from finger-pointing by unfriendly governments. Some of the finger-pointers don't hesitate to justify their own repressive actions against journalists by citing the U.S. prosecutorial practice.

Worse, these federal practices have encouraged the globalization of a new leak-plugging franchise: the pressing of journalists for whistle-blowers' names.

A survey I conducted last year of journalists' investigative rights in the 56 nations of the Organization for Security and Cooperation in Europe (OSCE) documented dozens of cases in recent years in which prosecutors on the hunt for unauthorized disclosures decided to squeeze journalists as their first move.

It was in Western Europe that we registered the most attempts at abusing official subpoena powers to use journalists as tools. In Belgium, Denmark, France, Germany, Italy, Switzerland, the Netherlands and Britain, we found temporary detentions of journalists, raids on editorial premises, and seizures of documents and computer hard-drives of members of the media.

But courts in Western Europe, unlike in the United States, regularly rebuffed overzealous prosecutors. In the vast area covered by OSCE, from Vancouver, Canada, to Vladivostok, Russia, it was only in the United States that journalists were punished and even jailed for not revealing sources.

Belgium passed a comprehensive source protection law in 2005; Germany's Federal Constitutional Court settled the issue in 2007; and France's Senate is expected to cast a final vote soon on renewed confidentiality guarantees for reporters; France's National Assembly passed such measures last month.

In the Central European democracies that emerged after 1989, the pattern of dealing with leaks at the expense of the media has taken a different route. For more than a decade, prosecutors in Hungary, Lithuania, Macedonia and Romania respected press freedoms, but in recent years they have started to indict reporters by invoking communist-era provisions about breaching official secrets. Those laws allow prosecutors to chase journalists to nail down leaks without even trying to identify the officials who failed to safeguard secrets.

Interestingly, there is almost no prosecution of journalists on allegations of violating official secrets in the former Soviet republics of Belarus, Russia, Azerbaijan and Uzbekistan, where prosecutors otherwise don't shrink from criminalizing journalism as "extremist," "insulting" or "defamatory." It is possible that investigative journalists in those countries are too intimidated to produce stories that must be reckoned with.

The U.S. Justice Department, of course, cannot be blamed for the imprisonment of foreign journalists by their governments. But American behavior is a model. The fact that U.S. reporters are incarcerated, and that the interests of national security are cited by the administration as its reason to resist a federal shield law, give undeserved moral cover to the criminalization of journalismworldwide.

The proposed U.S. federal shield law is officially called the Free Flow of Information Act, in reference to the renowned commitments of the Helsinki Accords more than 30 years ago -- human rights promises that still invigorate today's OSCE. Passing the Free Flow of Information Act would send a clear message that prosecuting journalists is not in vogue anymore and would signal solidarity with nations that crave more press freedom.

The writer is the representative on freedom of the media at the Organization for Security and Cooperation in Europe.


© 2008 The Washington Post Company

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