Revelations that the U.S. Justice Department in recent years subpoenaed the phone records of reporters from at least three news outlets have prompted an effort to strengthen media protections nationwide.
A proposed bill drafted by Senator Ron Wyden, a Democrat from Oregon, seeks to limit the government’s ability to access journalists’ records.
The Protect Reporters from Excessive State Suppression (PRESS) Act would buttress existing federal legislation that protects journalists, such as the Privacy Protection Act.
“This bill creates the strongest protections ever proposed for reporters’ documents and communications,” said Wyden, who told VOA he planned to introduce the bill in a few weeks.
The House introduced a companion bill to Wyden's proposal on Tuesday.
The measures come amid criticism from media rights groups over the rise in subpoena requests and investigations into whistleblowers.
Figures compiled by the U.S. Press Freedom Tracker — a collective that documents violations against media — show over 100 subpoenas and legal orders and eight leak investigations that impacted U.S. media between 2017, when the collective started documenting cases, and July 1, 2021.
Obama administration, too
But these are not recent problems. While investigations against leakers ramped up during the administration of former President Donald Trump, the Obama administration, in which current President Joe Biden served as vice president, had set the previous record.
Biden and his Justice Department have said they will end the practice of seizing journalists’ records. But Wyden and media rights experts say further action is needed to ensure those reforms remain in place.
“I think certainly the recent revelations of record seizures from journalists at CNN, The New York Times and The Washington Post elevated — or clearly illustrated — the need for a shield bill,” Gabe Rottman, the technology and press freedom project director at the Reporters Committee for Freedom of the Press (RCFP), told VOA.
The Justice Department has said the journalists were not the targets of its investigations. But the requests sought records from reporters who were covering the Pentagon and national security issues.
The Washington-based RCFP in May sued to force compliance with a Freedom of Information Act request for records showing how the Justice Department had approached its media guidelines under the Donald Trump administration.
Source protections
Shield laws seek to protect reporters’ ability to gather information by limiting the government’s ability to compel them to disclose sources or other information in court.
A reporter’s ability to protect sources is critical for investigative reporting that holds powerful people accountable, according to Richard Tofel, president of the public interest journalism site ProPublica.
“That said, it's impossible to know precisely which stories [where] efforts to chill relations between reporters and sources prevent [them] from coming to light,” Tofel told VOA via email. “Even still, we are sure such efforts do have that effect — reluctant sources who know of wrongdoing tell us so.”
Currently, nearly every U.S. state and the District of Columbia has either a shield law or court recognition of qualified privilege for sources. But no shield law exists at the federal level.
Congress has twice attempted in recent years to pass a federal law, but both efforts failed.
'Very strong bill'
Compared with those proposals, the PRESS Act is significantly narrowed in terms of what exemptions it allows, according to Rottman.
The PRESS Act would prevent the government from using compulsory processes like subpoenas, court orders or warrants to obtain information from journalists, unless the information could identify a suspected terror suspect or prevent imminent violence.
“It’s a very strong bill. It is significantly more protective than past versions,” Rottman said. “A federal shield bill will always founder on its exceptions. There's always a danger that if those exceptions are improperly articulated, they'll swallow the rule.”
Under current Justice Department guidelines, seizures of reporters’ records are considered “extraordinary measures” and journalists affected must be notified, unless doing so would risk the integrity of the investigation or national security. Journalists at CNN, the Times and the Post were not notified of the searches affecting them.
But the PRESS Act closes that loophole, Rottman said, adding, “The exceptions are narrow in a good way. And that's key.”
The proposal includes strong language on notifying journalists and news outlets of investigations, which could prevent authorities from accessing documents such as emails without first notifying those affected, Rottman said.
National Press Club President Lisa Matthews told VOA the proposal could better protect communications, but that she had some concerns.
What is journalism?
The bill could help “reduce the chilling effect on sources who may have read about government surveillance and are reluctant to talk to reporters,” Matthews said. But “it appears the act gets close to defining what journalism is and who is a journalist, and that is a slippery slope for government.”
Matthews added, “It’s good to see a reiteration of the importance of the protections of press freedom [but] it’s also unsettling that legislation with this level of specificity must be a consideration in 2021. It’s almost like we are starting all over again from where the First Amendment began.”
Shield legislation often receives bipartisan support in Congress, according to Rottman.
Wyden said he hoped that would be the case when he introduces the bill in a few weeks.
The success of similar legislation at the state level shows it is possible to strike a balance between media rights and the justice system, Tofel said.
“The considerable record in the vast majority of states with statutes protecting confidential sources makes clear that it is possible to robustly protect such sources while maintaining fairness in the administration of justice and the legitimate conduct of government,” Tofel said.
