If you’re planning on anonymously transmitting sensitive information to a news reporter about things the government wants to keep secret, you should remember that your conversation might not be as private as you think.
The revelation last May that the U.S. Department of Justice subpoenaed phone records from Verizon to track the conversations of more than 100 Associated Press reporters led the Committee to Protect Journalists to declare in October that when it comes to secrecy, the war on leaks and clamping down on press freedoms, Barack Obama is the worst president since Richard Nixon. Given other revelations since then, you could make an argument Obama is worse. (Then again, Nixon didn’t have access to today’s invasive technology.)
“Sources are more jittery and more standoffish, not just in national security reporting,” Michael Oreskes, a senior managing editor of The Associated Press, told the Committee to Protect Journalists. “A lot of skittishness is at the more routine level. The Obama administration has been extremely controlling and extremely resistant to journalistic intervention. There’s a mind-set and approach that holds journalists at a greater distance.”
So it it’s encouraging that a federal media shield proposal is about to reach the floor of the U.S. Senate. The Free Flow of Information Act would protect journalists from having to reveal their sources in federal court.
The Senate Judiciary Committee passed the bill in a bipartisan 13-5 vote last September. The bill, which was introduced by U.S. Sen. Charles Schumer of New York and is co-sponsored by 19 of his colleagues, may need 60 votes to pass given the very real possibility that it will face a filibuster.
One of the co-sponsors is Hawaii’s own U.S. Sen. Mazie Hirono, who voted in favor of similar legislation in 2007 when she was a member of the U.S. House.
Sen. Brian Schatz also indicated he will support the new measure. “A free press is a central tenet of our democracy,” Schatz said in a statement Thursday. “The media shield law balances our need to protect journalists’ right to information in order to hold the government accountable and our national security interests.”
On the national security side of the ledger, Schatz was referring to the bill’s safeguards. The bill will not shield entities like WikiLeaks that act as an avenue for sharing information, but that do not fit the traditional definition of journalism.
The Senate Judiciary Committee report says that 48 states and Washington, D.C. offer protections at the local level. Wyoming and Hawaii are the notable exceptions; the islands’ shield law expired last year and was not replaced. Two Hawaii Senate bills have been introduced, but neither have been scheduled for a hearing.
According to the U.S. Senate committee report, there have been 31 source-related subpoenas from the Department of Justice in the last 22 years. That doesn’t sound like much, but that’s because the burden of justifying these subpoenas rightly belongs to the federal government.
In the subpoenas of AP reporters, the federal government obtained extensive information that had nothing to do with the formal reason for its investigation.
The biggest revelations about domestic spying last year — and perhaps any year — came from Edward Snowden. Although the NSA spy programs and the Obama administration’s leak investigation that led to the AP subpoena haven’t been directly linked, the American people’s trust in government is on a steady, quick decline.
The result of these sorts of moves is changing the way some people interact with the media, including here in Hawaii, where Snowden worked for the government contractor Booz Allen Hamilton. Some residents are afraid to contact reporters by digital means, which is leading some reporters to meet face to face with more sources. There are good sides to that, but it is worth remembering that even if you meet someone face to face, there are many ways to leave digital traces of your encounter from, say, credit card records that show where you bought coffee and technology that shows where your cell phone is.
If this sounds a little extreme, remember that federal judges have attempted to put intense financial pressure on reporters for not revealing their sources, as happened to former USA Today reporter Toni Locy in 2008. She was held in contempt of court and briefly faced fines of up to $5,000 a day.
Since the tracking of AP reporters, Attorney General Eric Holder’s office issued news media guidelines, available here, for the nation’s Justice Department. In it, the report defines newsgathering as “constitutionally protected.”
It’s a positive sign, particularly since Holder and the president have both come out in favor of a federal shield law, despite the investigators’ continued pressure on journalists.
The bill offers a broad definition of what a journalist is. It includes college reporters, freelancers, bloggers, and anyone else gathering and disseminating information for the public good. The Society of Professional Journalists called it a “good compromise.”
The argument over what defines a journalist led to the failure of Hawaii’s shield law last year.
It’s an embarrassment that Hawaii has no functioning shield law, and it’s just as troubling that there are no specific federal protections either.