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Recently, Americans have witnessed a barrage of scandals regarding the federal government’s extension of their surveillance powers. Following whistleblower Edward Snowden's revelations—which of course point to the National Security Agency's spy programs and the FISA Court's endorsement of broad domestic-surveillance policies—the American citizenry's Fourth Amendment right to privacy has taken center stage. The truth of these invasive and unconstitutional policies is giving rise to further argument, and laying ground for a practical forum to engage elected officials to more clearly define citizens' rights in the digital era.
Yet, while Americans are engrossed in the debate over whether or not their government should be allowed to collect and examine the online data of citizens en masse, particularly without suspicion of criminal activity, the vehicle by which these revelations came to light—journalism—is now also under attack.
The trial of former CIA agent Jeffery Sterling, who faces charges under the Espionage Act, has provided insight into how the federal government interprets the rights of journalists. In 2008 New York Times reporter James Risen was ordered to testify against Sterling, allegedly a source in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. Risen, a Pulitzer Prize-winning journalist, condemned the order and fought the subpoena. In a two-to-one ruling this past July, the Fourth Circuit Court of Appeals issued this shocking statement: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify... in criminal proceedings.” Risen has subsequently stated that he'd rather be imprisoned than reveal the identity of his source.
Also this past July, the Department of Justice issued a review of their news-media policies. While some protections were provided to “professional” reporters, it's clear that any journalist who isn’t employed by a major news company would not enjoy the same protections. As Electronic Frontier Foundation activist Morgan Weiland put it, “The report is part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it.” While the DOJ's new guidelines may inevitably benefit James Risen, because he is a paid employee of an established news company, the same could not be said of any independent journalist, no matter how long they've been reporting or how credible their work is deemed by the public at large.
It's important to note that the revisions to DOJ policies do not provide actual legal protections for journalists. They are simply guidelines (better yet, suggestions) that dictate how the DOJ should behave in regards to interaction with the media. There is no legal protection provided by this memo that prevents federal law enforcement agencies from simply ignoring the guidelines all together and pursuing criminal charges against journalists.
Revisions to the Justice Department's policies concerning the media happened only after multiple instances in which the federal government covertly seized the telephone records and data of reporters. In May, the Associated Press announced that the Justice Department had obtained “outgoing calls for the work and personal phone numbers of individual reporters” during the months of April and May in 2012. In total, the records of 20 phone lines were included in the investigation. The DOJ attempted to justify its actions, offering up the Third Party Doctrine to deflect scrutiny. This exception states that authorities can acquire information transmitted to a third party, such as a telephone company or ISP, because the public has seemingly relinquished any expectation of privacy. In the Digital Era, where millions of Americans use service providers to access their bank records, interact with their physicians, and even communicate with confidential sources, this ridiculous rule is clearly contrary to the rights afforded under the Fourth Amendment—and presents a threat to the freedom of the press.
As American journalists and First Amendment advocates combat the US government over its assault on the media, members of congress and the Justice Department are engaged in a game of good cop/bad cop over this issue. The DOJ is attacking journalists, such as James Risen, and threatening to imprison them while Congress is advocating for expanded protections for the media under the law. To wit, those protections may come at a price, one that will most definitely sabotage the future of investigative journalism in America.
In May, a Senate bill titled the "Free Flow of Information Act Act of 2013” (S. 987) was introduced by Chuck Schumer and Lindsey Graham. The bill was originally introduced in 2007 (S. 2035), and then again in 2009 (S. 448), but either died in committee or failed a cloture vote. The bill is supported by Sen. Dianne Feinstein, chairman of the Senate Intelligence Committee, but only if it includes specific language that excludes individuals she claims, “are not reporters at all.” Schumer echoed Feinstein's concerns, specifically calling out WikiLeaks, saying, “We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that.” At the time of writing, the "Free Flow of Information Act" is schedule for more debate before the Senate Judiciary Committee on September 12.
This bill ironically purports to “maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.” The proposed law does not describe a “journalist” by that name, but instead a “covered person.” It defines this individual as someone who “regularly” reports on the news and excludes self-employed journalists. The House version of this bill (H.R. 1962) includes precarious language, solely defining this “covered person” as someone who reports for a news organization for “financial gain or livelihood.” The bill introduced by Representative Ted Poe (R-TX) suggests that the legal protections, already afforded to every US citizen under the Constitution, will only extend to an individual reporting the news for money.
It's common practice for politicians to color coat the purpose behind a controversial piece of legislation in an attempt to disguise it with a friendlier title for their colleagues and the general public. The current "Free Flow of Information Act" under discussion does nothing to support the free flow of information. In practice, this law would endanger internet bloggers, freelance writers, and citizen journalists who are guilty of nothing more than performing acts of journalism. Essentially, members of Congress have proposed a “media shield law” that paradoxically has no hope of shielding the media—unless of course the reporter in question happens to work for an establishment like CNN or the New York Times.
The US Constitution does not mince words on this subject: Congress has no authority to abridge the freedom of the press. Most importantly, many of today's respected citizen journalists represent more closely the kind of press originally referred to in that revered document, and certainly more so than anyone occupying a desk at 30 Rockefeller Plaza.
Some would argue that it's essential for breaking news to be handled by so-called professionals in the modern era, a period of heightened national security, that in a time when government whistleblowers are disclosing classified documents claimed to damage US foreign relations and potentially endanger the lives of American troops abroad, no one person should have the right to report the facts of these delicate issues. While there should always be a consistent effort to verify information and weigh its value to the public against the cost of its disclosure, sometimes the close relationship that professional news companies have with the US government interferes with what's best for the American public.
In 2005, the New York Times reported that President George W. Bush had secretly, and deliberately, authorized the NSA to violate the rights of American citizens by wiretapping them without a legally required warrant from the FISA Court. This story earned reporters Eric Lichtblau and James Risen (the same) a 2006 Pulitzer Prize. But a single sentence in their article rightfully drew concerns from many. They reported, “After a meeting with senior administration officials to hear their concerns, the newspaper delayed the publication for a year to conduct additional reporting.” The Times executive editor Bill Keller later admitted the delay in publication was actually longer than a year. In fact, the final decision on whether to publish the story or not landed, in Keller's words, on the “eve of the [presidential] election.”
The instinctive reaction for Americans is that the kind of “covered persons” outlined in Senator Schumer and Graham's media shield law work for organizations that may be more susceptible to government influence, such as the Times, a company that may hold back from reporting, for example, that an incumbent presidential candidate had broken serious laws or established conditions such that the American public is denied critical reasoning prior to reelection.
The "Free Flow of Information Act" will provide legal ground to the suggested protocols outlined in the Justice Department's Review of News Media Policies. Before anyone claims this so-called media shield law might be subject to a veto, remember that it was President Obama who ordered Attorney General Eric Holder to conduct the review and approved of its language.
Independent journalist Marcy Wheeler referred to a particular section of the Justice Department's review as the “WikiLeaks Exception,” which states: legal protections are “not intended to include persons and entities that simply make information available.” Individuals that simply release documents in their original form—the Justice Department insists—are not journalists because they are not using “editorial skills to turn raw materials into a distinct work.”
Likewise, Section 5 of the Free Flow of Information Act removes protections for WikiLeaks and organizations like it, stating that any “covered persons” revealing documents that may assist the federal government in “preventing or mitigating... acts that are reasonably likely to cause significant and articulable harm to national security” may be subject to “a subpoena, court order, or other compulsory legal process seeking to compel the disclosure of protected information.” Should this bill be passed by Congress, this section alone is enough incentive for President Obama to sign it into law. The implications of this language for journalists like Glenn Greenwald, who revealed the broad domestic-surveillance policies of the NSA, are frightfully apparent.
The Freedom of the Press Foundation and other independent journalists have outlined a clear goal for Congress to pursue: pass a media shield law that defines journalism as an action, not a profession. You cannot protect the First Amendment and ensure that America continues to have a free press by simply narrowing the definition of what a free press is. As Marcy Wheeler put it, “If the ultimate idea is to protect news-gathering activities, then why not establish what those activities are and then actually protect them, regardless of whether they are tied to a certain kind of institution?”
Harvard Law School professor Yochai Benkler has argued in defense of the kind of journalism that is intentionally unprotected in the "Free Flow of Information Act.” A week after taking the stand during Bradley Manning's trial, Benkler pointed to several past instances where whistleblowers had committed acts of journalism. One example was Dr. Daniel Ellsberg, the former US military analyst who leaked the Pentagon Papers in 1971, revealing the misconduct of several White House administrations, particularly Lyndon Johnson's office during the Vietnam War. In a comment Benkler wrote for the Guardian, “Leak-based journalism is not the be-all-and-end-all of journalism. But ever since the Pentagon Papers, it has been a fraught but critical part of our constitutional checks in national defense. Nothing makes this clearer than the emerging bipartisan coalition of legislators seeking a basic reassessment of NSA surveillance and FISA oversight following Edward Snowden's leaks.“
As it stands, the introduction of any media shield law in Congress is not intended to protect journalists or prevent the disclosure of classified information that might place American lives in danger. It is meant to revoke the rights of journalists who have revealed threats to the American public from within their own government. They are intended to curtail the rights of independent journalists who won't oblige the White House with a sit-down before publishing vital news during a Presidential election. In the past, the industrialized news media has expressed support for this kind of law, showing their willingness to sacrifice rights of everyone but themselves. Already, organizations such as the National Press Photographers Association and the American Society of News Editors have issued statements encouraging their members to support the bill.
If the Justice Department can simply imprison a few journalists like James Risen, perhaps even the public will call for the passage of a new media shield law—one void of dangerous terms like “compelled disclosure,” “limitations on content,” and “allegedly unlawful.”
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