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Schumer: Senate has votes for media shield law

Published: Friday, March 21, 2014 12:50 p.m. CST

WASHINGTON — A supporter of a bill to protect reporters and the news media from having to reveal confidential sources said Friday the measure has the backing of the Obama administration and the support of enough senators to move ahead this year.

Sen. Chuck Schumer of New York, the No. 3 Democrat in the Senate, spoke optimistically about prospects for the measure, identifying five Republicans who would join with Democrats and independents on a bill that he said would address a constitutional oversight.

While the first amendment protects freedom of the press, "there is no first amendment right for gathering information," Schumer said at The New York Times' Sources and Secrets Conference on the press, government and national security.

The bill was revived last year after the disclosure that the Justice Department had secretly subpoenaed almost two months' worth of telephone records for 21 phone lines used by reporters and editors for The Associated Press and secretly used a search warrant to obtain some emails of a Fox News journalist.

The Justice Department took the actions in looking into leaks of classified information to the news organizations. The AP received no advance warning of the subpoena.

Schumer discussed the bill's provisions and how, if it became law, it might affect journalist Glenn Greenwald, who reported on National Security Agency's secret surveillance based on documents leaked by Edward Snowden.

"It's probably not enough protections to (cover) him, but it's better than current law," Schumer said.

The bill's protections would apply to a "covered journalist," defined as an employee, independent contractor or agent of an entity that disseminates news or information. The individual would have to have been employed for one year within the last 20 or three months within the last five years.

It would apply to student journalists or someone with a considerable amount of freelance work in the last five years. A federal judge also would have the discretion to declare an individual a "covered journalist" who would be granted the privileges of the law.

The bill also says that information is only privileged if it is disseminated by a news medium, described as "newspaper, nonfiction book, wire service, news agency, news website, mobile application or other news or information service (whether distributed digitally or otherwise); news program, magazine or other periodical, whether in print, electronic or other format; or thorough television or radio broadcast ... or motion picture for public showing."

While the definition covers traditional and online media, it draws the line at posts on Twitter, blogs or other social media websites by non-journalists.

The overall bill would protect reporters and news media organizations from being required to reveal the identities of confidential sources, but it does not grant an absolute privilege to journalists.

The bill makes clear that before the government asks a news organization to divulge sources, it first must go to a judge, who would supervise any subpoenas or court orders for information. Such orders would be limited, if possible, "in purpose, subject matter and period of time covered so as to avoid compelling disclosure of peripheral, nonessential or speculative information."

Schumer was asked how the bill would affect James Risen, a Pulitzer prize-winning reporter who is battling government efforts to force him to testify in the trial of a CIA official occused of leaking information to him.

"Under our bill, Risen would have his day in court," Schumer said.

The senator wasn't certain about the impact on WikiLeaks founder Julian Assange, saying he didn't know how Assange makes his money under the bill's definition of a "covered journalist."

The Senate Judiciary Committee passed the bill last September on a 13-5 vote. Schumer said the measure has the support of Republican Sens. Johnny Isakson of Georgia, Roy Blunt of Missouri and Lindsey Graham of South Carolina. He also noted the backing of Iowa Sen. Charles Grassley and Utah Sen. Orrin Hatch in the committee.

"I think we're going to get the bill on the floor of the Senate and pass it," said Schumer, who explained that other Republicans have concerns due to national security.

Votes are not expected until after April, however.

In the AP story that triggered one of the leak probes, the news organization reported that U.S. intelligence had learned that al-Qaida's Yemen branch hoped to launch a spectacular attack using a new, nearly undetectable bomb aboard a U.S.-bound airliner around the anniversary of Osama bin Laden's death.

In the Fox News story, reporter James Rosen reported that U.S. intelligence officials had warned Obama and senior U.S. officials that North Korea would respond to a U.N. Security Council resolution condemning nuclear tests with another nuclear test.

Last month, the Justice Department announced it was revising its rules for obtaining records from the news media in leak investigations, promising that in most instances, the government will notify news organizations beforehand of its intention to do so.

The revised procedures are designed to give news organizations an opportunity to challenge any subpoenas or search warrants in federal court.

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