Monday Edition: Senate Judiciary Considers Shield Law for Journalists, Posted by Robert Paisola, CEO, CRETV.COM

Monday Edition: Senate Judiciary Considers Shield Law for Journalists
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By Al Tompkins (more by author)


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This week, the U.S. Senate Judiciary Committee will take up the Free Flow of Information Act of 2007, sponsored by senators Arlen Specter R-Pa. and Charles E. Schumer D-N.Y. There are 10 co-sponsors from the Senate and 71 from the identical House version.

The Society of Professional Journalists has an extensive resource page on this issue.

The Department of Justice opposes the law, saying it is not necessary because the Feds already have a fine policy of balancing journalists' rights with the public's "interest in effective law enforcement." Click here to read the testimony [PDF] of assistant attorney general Rachel Brand, who spoke before the House Judiciary Committee in June.

Make no mistake about it. Plenty of reporters have gone to jail for contempt of court in the last 20 years after they refused to reveal their sources. Click here for a list.

Here are links to some of the more noteworthy cases:

BALCO -- Grand jury investigation

Josh Wolf -- Grand jury subpoena

Plame -- Investigation

Islamic charities -- Grand jury subpoenas

Wen Ho Lee -- Lawsuit subpoenas

Steven Hatfill -- Lawsuit subpoenas

Taricani -- Home confinement

Lynne Stewart -- Trial subpoenas


The shield law being considered on the federal level would protect traditional journalists at TV/radio stations and newspapers, as well as bloggers.

Both the House and Senate bills say:


The term "journalism" means the 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.

The legislation does not provide a complete and total shield against giving up a source. These are the conditions under which a journalist would have to cough up a source's name:

(a) Conditions for Compelled Disclosure -- In any proceeding or in connection with any issue arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information possessed by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person--
(1) that the party seeking to compel production of such testimony or document has exhausted all reasonable alternative sources (other than a covered person) of the testimony or document;
(2) that--
(A) in a criminal investigation or prosecution, based on information obtained from a person other than the covered person--
(i) there are reasonable grounds to believe that a crime has occurred; and
(ii) the testimony or document sought is essential to the investigation or prosecution or to the defense against the prosecution; or
(B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than the covered person, the testimony or document sought is essential to the successful completion of the matter;
(3) in the case that the testimony or document sought could reveal the identity of a source of information or include any information that could reasonably be expected to lead to the discovery of the identity of such a source, that--
(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively; or
(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed--
(i) a trade secret of significant value in violation of a State or Federal law;
(ii) individually identifiable health information, as such term is defined in section 1171(6) of the Social Security Act (42 U.S.C. 1320d(6)), in violation of Federal law; or
(iii) nonpublic personal information, as such term is defined in section 509(4) of the Gramm-Leach-Bliley Act (15 U.S.C. 6809(4)), of any consumer in violation of Federal law; and
(4) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.
(b) Limitations on Content of Information- The content of any testimony or document that is compelled under subsection (a) shall, to the extent possible--
(1) be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and
(2) be narrowly tailored in subject matter and period of time covered so as to avoid compelling production of peripheral, nonessential, or speculative information.
The Newspaper Association of America says this in support of a federal shield law:


More than 40 reporters have been subpoenaed or questioned about their confidential sources, their notes, and their work product over the last few years in criminal and civil cases in federal court. Ground breaking stories, such as conditions at Walter Reed Army Medical Center, the Abu Ghraib prison scandal and baseball steroid abuse, would not have been possible without confidential sources. The journalist is becoming the first stop, rather than the last resort, for civil litigants and prosecutors attempting to obtain the identity of confidential sources.



How often are reporters subpoenaed?

We really don't know, and it remains uncertain as to whether the number is rising. It is possible, however, to know how often the federal courts pull reporters into the legal process.

The Reporters Committee for Freedom of the Press says:


Unfortunately, there is no way of recording which subpoenas are issued to members of the news media on the national level, although the Department of Justice guidelines (28 C.F.R. 50.10) do mandate that any federal subpoena issued to a member of the news media must be approved by the Attorney General.
In response to a 2006 Freedom of Information request submitted to Criminal Division of the U.S. Department of Justice, the Reporters Committee was informed that "approximately 65 requests for media subpoenas have been approved by the Attorney General since 2001" pursuant to the guidelines. The response listed the following numbers as their breakdown by year, although the Reporters Committee makes no guarantee that this response is accurate:



2001
13

2002
7

2003
16

2004
19

2005
7

2006
3





The Civil Division of the Department of Justice informed the Reporters Committee that they had not submitted any media subpoenas to the Attorney General for approval in recent years, and the Civil Rights Division indicated likewise.

Again, the Reporters Committee does not guarantee that these numbers represent accurate totals. Please also note that these numbers do NOT include any subpoenas not issued pursuant to the guidelines or subpoenas issued in non-federal proceedings.






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Weak Dollar Spurs Spending

The Canadian dollar (also the so-called "loonie," named after the loon on the face of the coin) hit parity with the U.S. dollar last week.

The dollar also took a beating in Europe. All of this may mean the "snowbirds" who come south to Florida, South Carolina, Arizona, etc., will soon be flush with cash unlike when the U.S. dollar was strong against the Canadian dollar. This might mean they'll stay down south longer.

The Associated Press says border cities like Buffalo, N.Y., may start seeing their fair share of Canadian shoppers.

The Canadian Press says:

For the past few weeks, as the loonie inched higher in value, Canadians have been heading across the border to take advantage of their strong currency and U.S. prices that are often inexplicably lower than those in Canada.

And for Canadians who don't want to or can't make the drive, the online market is becoming a much more attractive shopping site for everything from lacy underwear to massive, high-definition TV sets.

"Shopping is so much better here," said Sam Theriault of Hartland, N.B., as she headed into the Wal-Mart in Houlton, Maine - just across the border from Woodstock, N.B.

"The dollar is equal and everything is cheaper over here. I like to support my own country, but being a single mom, you have to find the savings."

American retailers are rubbing their hands in glee as they watch their parking lots fill with cars loaded with Canadian shoppers.

Cara Buckingham, marketing manager at Bellis Fair in Bellingham, Wash. - about an hour's drive from Vancouver - said sales have increased at the popular shopping destination ever since the Canadian dollar started climbing last spring.

"We've seen double-digit increases month to month, compared to the previous year," Buckingham said.


The (Canada) Financial Post points out:

Since the beginning of 2003, the loonie has shot up from US65¢ to US$1. That is a 54% increase that touches the heart of every Canadian nationalist. But look at other major currencies, and you will see that the loonie is not alone in its rise against the U.S. dollar. Most importantly, the euro, which does not have Canada's commodity or surplus stories driving it, is up about 36% against the U.S. dollar.

Compare these two increases and you can argue that two-thirds of the charge to parity over the past five years is due to U.S. dollar weakness. Just one-third is due to the strength of the Canadian dollar. In other words, the loonie has not risen as much as the U.S. dollar has declined -- which is why the Canadian-dollar hitting parity was greeted with yawns in most places outside Canada.







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Do Not Call List Expires in Nine Months

Have you noticed, as I have, that the dinner hour has been quieter since June 2003? The phone no longer constantly rings with telephone solicitors trying to sell me stuff. The source of that bliss is the Do Not Call Registry.

Though it's not perfect, it works better than nothing. But the list will soon expire, and you will have to sign up all over again unless Congress passes legislation that says you will remain on the list until you choose to get off of it.

The Associated Press reports:

Numbers placed on the registry, begun in June 2003, are valid for five years. For the millions of people who signed onto the list in its early days, their numbers will automatically drop off beginning next June if they do not enroll again.

"It is incredibly quick and easy to do," Lydia Parnes, director of the FTC's bureau of consumer protection, said in an interview with The Associated Press this week. "It was so easy for people to sign up in the first instance. It will be just as easy for them to re-up."

But Rep. Mike Doyle, D-Pa., says people should not be forced to re-register to keep telemarketers at bay. Doyle introduced legislation this week, with bipartisan support, to make registrations permanent. [Click here to read the bill.]


"When someone takes the time and effort to say 'I don't want these kinds of calls coming into my house,' they shouldn't have to keep a calendar to find out when they have to re-up to keep this nuisance from happening," Doyle said in an interview.

The FTC built the five-year expiration date into the program to account for changes, such as people who move and switch their phone number, Parnes said.

Congressman Doyle says, on his Web site:

“Without passage of the Do-Not-Call Improvement Act of 2007, over 50 million phone numbers will be purged from the Do Not Call Registry within the next year,” Congressman Doyle observed. “The hassle will be tremendous – with no real pay-off. The best way to deal with this nightmare is to end it before it starts. That’s why I’m introducing this bill. I hope that Congress will pass it as rapidly as it did the legislation authorizing the Do Not Call Registry in 2003.”







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