US senator John Cornyn doesn’t think bloggers are real reporters.
The “relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher” also has the “risk of creating a certain irresponsibility when it comes to accurately reporting information,” he says in a statement to a Senate Judiciary Committee hearing on reporters' privilege legislation.
In the background was senator Richard Lugar’s Free Flow of Information Act.
Among those testifying were Judith Miller, the New York Times reporter who landed in jail because she wouldn’t name a source, and Chuck Rosenberg, a “United States Attorney for the Southern District of Texas United States Department of Justice” who says the DoJ "prides itself on its record of objectivity in reviewing press subpoenas".
John Cornyn >>>>>>>>>>>>>>>>>>>>>>>>
The press is essential to providing the public with vital information – much of which is necessary for the public to do their citizen duties. For this reason, we must maintain and defend the freedom of the press. An independent and free press is beneficial to our system of government and beneficial to our everyday life. The better informed we are, the better decisions we will make.
To effectively carry out its mission, the press needs to have access both to people and to information. At times, they will only be able to obtain certain pieces of valuable information if they are able to promise their sources anonymity. Confidential sources have lead to the discovery of corruption and incompetence both within and without government, and these revelations at times have served to make our society better.
Of course, standards for anonymity differ from outlet to outlet, and I do believe that the highest bar possible should always be applied when determining whether or not to afford such anonymity. But we must realize that at certain times, it is indeed necessary to protect certain sources in this way.
But there are competing values at stake in this debate. We must also be careful not to unnecessarily tie the hands of legitimate law enforcement investigations. We simply cannot prevent the government from obtaining information while it is conducting legitimate investigations, particularly when that information can be used to save lives, or is relevant to our national security. This is central to the shield legislation debate.
We also need to have a serious discussion of what constitutes the term “reporter.” Media consumers no longer rely exclusively on traditional media outlets to obtain information. Today’s technology allows for anyone to report information to a vast audience virtually instantaneously, thus creating a new generation of “cyber reporters” or those we know today as bloggers.
At our last hearing, one of our witnesses described bloggers as the modern day equivalent of the revolutionary pamphleteer who passed out news bulletins on the street corner. However, the relative anonymity afforded to bloggers, coupled with a certain lack of accountability, as they are not your traditional brick-and-mortar reporters who answer to an editor or publisher, also has the risk of creating a certain irresponsibility when it comes to accurately reporting information.
Therefore as we consider what protections to afford, it is also important to consider whether bloggers, or reporters for entities such as al Jazeera, or others whose associations perhaps are questionable or even cause for concern, ought to be covered under this type of law.
We are exploring a complex set of issues that require careful interpretation of one of our most fundamental freedoms, and I look forward to working with members of this Committee and with the Chairman to reach a viable solution.
Judith Miller >>>>>>>>>>>>>>>>>>>>>>>>
Good morning, I am Judith Miller, a reporter for The New York Times. That statement, in and of itself, is extraordinary. Reporters don’t usually testify at Congressional hearings. But the circumstances that in July forced me to spend 85 days in the Alexandria Detention Center in Virginia highlight the urgent need for a Federal shield law to protect journalists and their sources.
I am here today to urge you to enact the Free Flow of Information Act so that other journalists will not be forced, as I was, to go to jail to protect their sources. I’m here because I hope you will agree that an uncoerced, uncoercable press, though at times irritating, is vital to the perpetuation of the freedom and democracy we so often take for granted.
After almost three months in jail, I managed to secure both a personal letter and a telephone call from my source, I. Lewis Libby, and equally critically, an agreement with the prosecutor to focus his questioning on my main source and the Plame/Wilson affair. Had I not gotten both agreements, I would not have testified. I would still be in jail, as I was during your last hearing on this measure.
Yes, the legal machinations in my case were enormously complex, but the principle I was defending was fairly straightforward: once reporters give a pledge to keep a source’s identity confidential, they must be willing to honor that pledge and not testify unless the source gives explicit, personal permission for them to do so, and they are able toi protect other confidential sources.
Eventually, when the fuss over my case dies down, I hope journalists and politicians will begin examining the real issues at stake here, especially the question of when and under what circumstances a waiver can be considered voluntary. Struggling with such a weighty question alone in jail was hardly ideal. I did the best I could under rather challenging circumstances.
Confidential sources are the life’s blood of journalism. Without them, whether they are in government, large or small companies, or in non-profit organizations, people like me would be out of business. As I painfully learned while covering intelligence estimates of Saddam Hussein’s weapons of mass destruction, we are only as good as our sources. If they are wrong, we will be wrong. And a source’s confidence that we will not divulge their identity is crucial to his or her readiness to come to us with allegations of fraud or abuse or other wrongdoing, or even a dissenting view about government policy or business practices that the American public may need to know.
If journalists cannot be trusted by sources to guarantee confidentiality, then journalists cannot function and there cannot be a free press. Those who need anonymity are not only the poor and the powerless, those whose lives or jobs might be in jeopardy if they speak up publicly, but even the powerful. All are entitled to anonymity if they are telling the truth and have something of importance to say to the American people. Reporters rarely know when they extend a pledge of confidentiality to a good-faith source what the impact of the information being provided will be.
Our history is filled with examples of articles that never would have been written without confidential sources. Last Saturday in Los Angeles, I presented an award to the grandson of Mark Felt, the former deputy director of the F.B.I. who was critical in helping Bob Woodward and Carl Bernstein of the Washington Post turn what was originally denigrated as a third-rate burglary into a tale of corruption and malfeasance that brought down a president. Woodward and Bernstein felt so strongly about their pledge to their source to safeguard his confidentiality they passed up a huge scoop by letting Mr. Felt’s family announce to another person the secret they had held for over 30 years: that he, in fact, was, Deep Throat.
Few of us reporters can claim such a famous exclusive. But I know from my 30 years in national security and intelligence reporting that confidential sources in this area, though traditionally the most press-shy and skittish of contacts, are indispensable to government accountability and the people’s right to know. I would point to just two examples: in 2000, I relied heavily on such sources in co-writing a series of articles published in January 2001 that described the Clinton Administration’s growing concerns about the then still underappreciated military Islamic group, Al Qaeda, which was openly and doggedly pursuing nuclear, biological and chemical weapons. That series, which won one of seven Pulitzer Prizes for The New York Times that year, could never have been written without the pledges of confidentiality I gave to the officials who were so worried about Al Qaeda -- all too presciently, alas -- that they were willing to discuss classified information with me to call attention to how relatively little time and money were being spent countering what they considered the gravest of threats to our nation.
Nor could “Germs,” which I co-authored with two Times colleagues, Stephen Engelberg and William Broad, have been written without confidential sources. That book, which discussed what our government and others were doing to counter the growing menace of biological warfare and terrorism, was published a few days before the Sept. 11 attacks and less than a month before the anthrax letter attacks killed five, sickened 17, and put 30,000 people on antibiotics.
Admittedly, the situation that sent me to jail was not as clear-cut – it was not the case of a government or corporate whistleblower, but an all too familiar case of Washington politics. Yet the principle, that confidential sources must be protected, must apply in all cases: indeed, one person’s whistleblower is another ‘s snitch. Some have argued that the individual in my case did not deserve confidentiality because his motives were not pure. But whistleblowers or those who engaged in spinning reporters are not usually saints, and journalists should not demand that they be so. While reporters must try to understand why someone is telling them something, what counts far more than their motivation is the truth and significance of what they are saying. Moreover, when offering to keep a source’s identity confidential, journalists seldom know in advance whether the information being provided will turn out to be insignificant, or even sufficiently strong to produce a story, or of major national importance. Thus, promises of confidentiality once made, must be respected unless the source specifically and personally waives that privilege, or the public’s right to know will suffer.
What rankles me the most is that in the two place I live and work, New York and the District of Columbia, there is absolute protection for confidential sources. In fact, as this panel knows, all but one state – Wyoming – have enacted shield laws or assured such protection through court rulings. But such protection of the public’s right to know does not exist at the Federal level because of a more than 30-year old Supreme Court ruling that has spread confusion in Federal courts and news bureaus throughout the land. Because of that judicial chaos, reporters who ought to be able to rely on a state’s law, may not be able to do so. Sometimes, through chance, a case may end up in a Federal rather than a state court. Not only does this lead to a lack of legal predictability and no real basis on which to govern one’s behavior, it is also fundamentally unfair. That is yet another reason why a Federal Shield Law is so essential. The Federal government should finally catch up with the will of the states, all but one of which now provide absolute or qualified protection for reporters and their sources. Most of these laws have been adopted in the 30 years since the Supreme Court's decision
A second reason why this bill is so urgently needed is that in the post 9/11 era, dramatically increased amounts and types of information are being classified as secret, and hence, are no longer available for public review. Last year, more documents were classified secret and top secret than ever before in American history. In such a climate, confidential sources, particularly in the national security and intelligence areas, are indispensable to government accountability.
Journalists are increasingly being subjected to Federal subpoenas since 9/11. More than two dozen reporters have been subpoenaed in the past two years and are in danger of going to jail. If current trends prevail, the Alexandria Detention Facility may have to open an entire new wing to house reporters.
With respect to the specifics of the proposed Bill, I would just say that I support the exception which has been drafted by its sponsors that would exempt “imminent and actual harm” to the national security, even if it is extended to potential bodily harm. I was an embedded reporter in Iraq in one of the most sensitive missions. I do not underestimate the potential jeopardy facing American soldiers and those who work with them if secret information is disclosed prematurely. But more than 30 states attorneys general, in a brief supporting the reporter’s privilege, that the protection of confidential sources was paramount. And not one mentioned an instance in which a hostage or person at risk died or was injured because a journalist insisted on protecting her source, or a prosecution that failed because of a state shield law.
However, while I favor that exception, I would very strongly oppose further amendments to the bill that would exempt any investigation into past criminal speech or activity, usually a leak. For one, most federal subpoenas from prosecutors involve potentially criminal disclosures. The leakers in the Balco case in San Francisco violated grand jury secrecy rules or laws, but their information about steroid use in professional baseball gave Congress the facts and impetus to start hearings and make needed reforms. Daniel Ellsberg arguably violated the Espionage Act, but in retrospect it is clear that The New York Times did well by publishing the Pentagon papers and giving greater historical context to the reasons why we were in Vietnam.
Such leaks, be they criminal or not, often serve a public good. And it is also usually unclear early on whether the leaker is violating a law. Thus, an exception for criminal activity would be unworkable, since at the time a subpoena is issued to a reporter a decision would have to be made on whether the underlying crime had in fact occurred.
Finally, reporters should not be an arm of the law; if government employees illegally leak information, it is up to government, with all its coercive power, to discover the culprit, not a reporter whose primary duty is to inform the public.
In conclusion, I would just say that my 85 days in prison were tempered by the letters I received from friends and supporters throughout the country, and indeed the world. Some of the letters that touched me most were those from journalists and writers overseas, many of whom have always looked to America as a beacon of press freedom. Those writers simply could not understand how a reporter doing her job -- much less a reporter who had never written wrote an article on this story -- could be imprisoned for keeping her word. Foreigners and Americans alike have been startled and disappointed at the seeming contradiction between our great tradition of a free press and jailing a reporter who was trying to protect a source so that she could continue publishing, as my paper would say, “all the news that’s fit to print.”
In jail, I had to draft some standards that I felt would help me and perhaps other journalists determine when, and under what circumstances, we could conclude whether a source was truly willing to let a reporter identify him or her and testify before a grand jury. But I would hope that you will act to prevent other journalists from having to conduct such metaphysical debates about free will and what constitutes a source’s waiver of confidentiality while in jail.
What has been missed in much of the furor over my case, paraphrasing Paul Levinson, a Fordham University professor, is that the recent hand-wringing should not prevent us from recognizing the most enduring truth: reporters, even flawed reporters, should not be jailed for protecting even flawed sources. When the dust clears, I hope that journalists and newsrooms will be emboldened, not confused or angered by what I have done. And I hope that you will help ensure that no other reporter will have to choose between doing her small bit to protect the First Amendment and her liberty.
Chuck Rosenberg >>>>>>>>>>>>>>>>>>>>>>>>
Good Morning. Chairman Specter, Ranking Member Leahy, and Members of the Committee, I am pleased to appear before you to discuss the Justice Department’s concerns regarding S. 1419, the “Free Flow of Information Act of 2005.”
The Department of Justice recognizes that the media play a vital role in our society. The freedom of the press is enshrined in the Bill of Rights, and its importance is demonstrated by its place as the First Amendment to the Constitution. The press plays a crucial role in keeping the American people informed of what is happening overseas, in Washington, and in their hometowns. Moreover, reporters are critical to the Department’s efforts to prevent crime. Every day across the country, reporters file stories on the important work of the Department and thereby help to deter others from committing crimes in the future.
S. 1419 would limit the circumstances and manner in which compulsory process may be issued to members of the media. It would cover compulsory process issued by any Federal entity (including a subpoena issued by any Federal court); therefore, it would apply in a wide variety of litigation settings. The Department does not wish to comment at this time regarding the efficacy of such legislation in the context of private litigation in which the Department is not a party, and in which the Department of Justice guidelines would not apply. Rather, my testimony concerns the legitimate investigative ways in which this legislation could significantly interfere with the Government's own activities in an unnecessary and harmful way.
The Department of Justice understands the concerns that underlie this legislation, and we recognize the importance of striking a balance between the interests of the American people in bringing criminals to justice and the needs of a free press. Current law and Department of Justice regulations governing the issuance of subpoenas to reporters and media organizations reflect an appropriate balance of those competing interests. Respectfully, as presently drafted, S. 1419 does not.
The Department opposes the bill as presently drafted primarily because the bill would create serious impediments to the Department’s ability to effectively enforce the law, fight terrorism, and protect the national security. The Department’s concerns center on five main aspects of the bill.
First, the bill imposes inflexible, mandatory standards in lieu of existing voluntary guidelines that can be adapted to changing circumstances. The events of the past four years have shown that law enforcement must be more, rather than less, flexible to meet the challenges posed by international terrorist organizations and sophisticated criminal enterprises.
Second, the bill would bar the Government from obtaining information about media sources even in the most urgent of circumstances affecting the public’s health or safety except in a very narrow category of cases involving “imminent and actual harm to national security.” This is simply too late and too narrow. Many significant, deadly crimes have nothing to do with national security, and if the harm is actual and imminent, a subpoena for source information that is approved consistent with the proposed approach will likely be too late to be helpful.
Even in cases involving harm to the national security, the Government could obtain information about media sources only if it were necessary to prevent imminent and actual harm to the national security. If harm to the national security already had been done, the Government would not be able to obtain the information. This may make it difficult, if not impossible, to obtain vital information on how national security information was disclosed and to whom it was disclosed.
For instance, in the case of the analysis and assessment of damage to national security, where information revealed through unauthorized disclosure originated can be important in determining what has been put as risk. Not all material “leaked” in a given unauthorized disclosure may be published, but nonetheless may be shared with additional parties, further compounding the damage to national security. Damage also is not always temporally confined to a given point in time; sometimes repeated disclosures magnify the impact by serving as corroboration, especially if they come from different sources.
Third, the bill would give courts the authority to evaluate requests for subpoenas to members of the media in an on-going criminal investigation and place an unreasonable burden on the Government to explain to the court, in a public evidentiary proceeding, the reasons it requires non-source information. Such a procedure would pose serious threats to grand jury secrecy and the confidentiality of on-going criminal investigations.
Fourth, the bill would bar not only subpoenas issued to reporters for their sources but also any subpoenas issued to certain third parties that reasonably could be expected to lead to the discovery of the identity of a source. The standard is impractical and would effectively prevent law enforcement from obtaining material that has nothing to do with media sources.
Fifth, the Department objects to the broad definition of "covered person" in section 5(2) that, inter alia, encompasses foreign media and foreign news agencies (including government-owned and -operated news agencies), some of which are hostile to the United States and some of which can, and have, acted in support of foreign terrorist organizations (a reporter of the Qatarian news network Al-Jazeera was recently convicted in Spain for acting as a financial courier for Al-Qaeda). The mere fact that such foreign media entities and their reporters may operate primarily abroad does not mean that they do so exclusively, or that their involvement in activity in the United States that may warrant the use of Federal compulsory process against them is a merely hypothetical prospect. Extending special privilege and legal protections to such entities in U.S. criminal and civil law enforcement proceedings, as this bill does, is entirely unwarranted and inconsistent with the Department's law enforcement mission and the war on terrorism.
Such an expansive definition of “covered person” could unintentionally offer a safe haven for criminals. As drafted, the definition invites criminals to cloak their activities under the guise of a “covered person,” so as to avoid investigation by the Federal government. The overbroad definition of a “covered person” could be read to include any person or corporate entity whose employees or corporate subsidiaries publish a book, newspaper, or magazine; operate a radio or television broadcast station; or operate a news or wire service. Additionally, the definition arguably could include any person who sets up an Internet “blog” or any other activity to “disseminate information by print, broadcast, cable satellite[, etc.],” as set forth in the bill.
More generally, the Department does not believe that legislation is necessary because there is no evidence that the subpoena power is being abused by the Department in this context. The Department prides itself on its record of objectivity in reviewing press subpoenas, and any legislation that would impair the discretion of the Attorney General to issue press subpoenas – or to exercise any other investigative options in the exercise of the President’s constitutional powers – is unwarranted. For the last 33 years, the Department of Justice has authorized subpoenas to the news media only in a small number of cases involving serious allegations of criminal conduct. Since 1991, 3.7% of the media subpoena requests processed by the Criminal Division for Attorney General approval were for confidential source material.
The guidelines set out in the Department’s regulations strike the appropriate balance between the need for evidence in a criminal investigation and the interests of a free press. Specifically, 28 C.F.R. § 50.10 already requires the Attorney General personally to approve all contested subpoenas directed to journalists following a rigorous multi-layered internal review process involving various components of the Department. After “all reasonable attempts” have been made to obtain information from alternative sources and negotiations for voluntary production have failed, a prosecutor may seek permission to issue a subpoena to the media if there are “reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation--particularly with reference to directly establishing guilt or innocence.” Ordinarily, this requires the prosecutor to write a detailed memorandum and obtain the approval of the United States Attorney or Assistant Attorney General responsible for the investigation. The memorandum is then reviewed by the Office of Enforcement Operations and the Assistant Attorney General in the Criminal Division, the Office of Public Affairs, the Office of the Deputy Attorney General, and, ultimately, the Attorney General. The review process is sufficiently exhaustive to deter prosecutors from even making requests that do not meet the standards articulated in the regulations. As a result, subpoenas are issued to the media only when necessary to obtain important, material evidence that cannot be reasonably obtained through other means.
It is also important to note that the bill would effectively overrule the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), which held that reporters have no privilege, qualified or otherwise, to withhold information from a grand jury conducting a good faith investigation. Branzburg has been followed consistently by the Federal courts of appeals, and was recently followed by the United States Court of Appeals for the District of Columbia. Indeed, the bill would create a reporter’s “privilege” – which has not been recognized by the Supreme Court – and give it more protection than other privileges that have been recognized, including the attorney-client privilege and the spousal privileges.
See:- reporters' privilege legislation - Reporters' Privilege Legislation: An Additional Investigation of Issues and Implications, October 19, 2005 Richard Lugar’s - Free Flow of Information Act, October 13, 2005
